CAYMAN ISLANDS

CAYMAN ISLANDS
Supplement No. 1 published with Gazette No. 14
dated 7 July, 2009.
STATUTORY INSTRUMENTS
2009 No. 1379
THE CAYMAN ISLANDS CONSTITUTION ORDER 2009
The Cayman Islands Constitution Order 2009
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The Cayman Islands Constitution Order 2009
STATUTORY INSTRUMENTS
2009 No. 1379
CARIBBEAN AND NORTH ATLANTIC TERRITORIES
The Cayman Islands Constitution Order 2009
Made 10th June 2009
Laid before Parliament 17th June 2009
Coming into force in accordance with section 1(2)
At the Court at Buckingham Palace, the 10th day of June 2009
Present,
The Queen’s Most Excellent Majesty in Council
Her Majesty, in exercise of the powers conferred upon Her by sections 5 and 7 of
the West Indies Act 1962(1) and of all other powers enabling Her to do so, is
pleased, by and with the advice of Her Privy Council, to order, and it is ordered,
as follows:
Citation and commencement
1. (1) This Order may be cited as the Cayman Islands Constitution Order
2009.
(2) This Order shall come into force on such day as the Governor, acting
in his or her discretion, shall appoint by proclamation published in a Government
Notice.
Interpretation
2. (1) In this Order -
“the appointed day” means the day appointed by the Governor under section 1(2);
“the Constitution” means the Constitution set out in Schedule 2;
“the former Constitution” means the Constitution established by the Cayman
Islands (Constitution) Order 1972(2);
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“the Legislative Assembly” means the Legislative Assembly established by the
Constitution;
“the former Legislative Assembly” means the Legislative Assembly established
by the former Constitution.
(2) Section 124 of the Constitution shall apply for the purposes of
interpreting sections 1 to 9 of this Order and otherwise in relation to them as it
applies for the purposes of interpreting and in relation to the Constitution.
Revocations
3. The instruments specified in Schedule 1 are revoked with effect from the
appointed day.
Establishment of Constitution
4. (1) Subject to subsections (2), (3), (4) and (5), Schedule 2 shall have effect
as the Constitution of the Cayman Islands from the appointed day.
(2) Part I of the Constitution shall have effect from the day three years
after the appointed day; but section 6(2) and (3) of the Constitution shall have
effect from the day four years after the appointed day.
(3) Until the Legislative Assembly is next dissolved after the appointed
day -
(a) section 44(1)(b) of the Constitution shall have effect as if the
reference to “six other Ministers” were a reference to “four other
Ministers”;
(b) section 44(2) of the Constitution shall have no effect;
(c) section 60(1)(b) of the Constitution shall have effect as if the
reference to “eighteen elected members” were a reference to
“fifteen elected members”;
(d) section 60(2) of the Constitution shall have no effect.
(4) Until the Judicial and Legal Services Commission has been constituted
in accordance with section 105 of the Constitution, power to make appointments
to the offices to which section 106 of the Constitution applies shall vest in the
Governor, acting in his or her discretion.
(5) Until a person has been appointed to the office of Director of Public
Prosecutions in accordance with section 106 of the Constitution or subsection (4)
of this section, section 57 of the Constitution shall have effect as if the references
to the Director of Public Prosecutions were references to the Attorney General.
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Existing laws
5. (1) Subject to this section, the existing laws shall have effect on and after
the appointed day as if they had been made in pursuance of the Constitution and
shall be read and construed with such modifications, adaptations, qualifications
and exceptions as may be necessary to bring them into conformity with the
Constitution.
(2) The Legislature may by law make such amendments to any existing
law as appear to it to be necessary or expedient for bringing that law into
conformity with the Constitution or otherwise for giving effect to the
Constitution; and any existing law shall have effect accordingly from such day,
not being earlier than the appointed day, as may be specified in the law made by
the Legislature.
(3) In this section “existing laws” means laws and instruments (other than
Acts of Parliament of the United Kingdom and instruments made under them)
having effect as part of the law of the Cayman Islands immediately before the
appointed day.
Existing offices and officers
6. (1) Any office (except that of Chief Secretary) established by or under the
former Constitution and existing immediately before the appointed day shall on
and after that day, so far as is consistent with the Constitution, continue as if it
had been established by or under the Constitution.
(2) Any person who immediately before the appointed day holds or is
acting in any office continued by virtue of subsection (1) shall, on and after that
day, continue to hold or act in that office as if he or she had been appointed to
hold or act in it in accordance with or under the Constitution.
(3) Any person to whom subsection (2) applies who, before the appointed
day, has made any oath required to be made before assuming the functions of his
or her office shall be deemed to have made any like oath so required by the
Constitution or any other law.
(4) The person who, immediately before the appointed day, holds the
office of Leader of Government Business shall, on and after that day, hold the
office of Premier in accordance with the Constitution.
Legislative Assembly
7. (1) Any person (except the Chief Secretary and the Financial Secretary)
who immediately before the appointed day is a member of the former Legislative
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Assembly shall on that day become a member of the Legislative Assembly, shall
be deemed to have complied with section 60(3) of the Constitution, and shall hold
his or her seat in accordance with the Constitution.
(2) The Standing Orders of the former Legislative Assembly as in force
immediately before the appointed day shall, except as may be otherwise provided
under section 71 of the Constitution, have effect on and after that day as if they
had been made under that section, but they shall be read and construed with such
modifications, adaptations, qualifications and exceptions as may be necessary to
bring them into conformity with the Constitution.
(3) The Governor shall dissolve the Legislative Assembly not later than
the expiration of four years from the date when the former Legislative Assembly
first met after the last general election before the appointed day.
Electoral districts
8. (1) As soon as practicable after the appointed day, and before the
Legislative Assembly is dissolved in accordance with section 7(3), the Governor
shall appoint an Electoral Boundary Commission in accordance with section 88
of the Constitution.
(2) The Commission so appointed shall, as soon as practicable and in
accordance with section 89 of the Constitution, review the electoral district
boundaries and submit a report to the Governor and the Legislative Assembly
containing its recommendations for changes in the boundaries of the electoral
districts with a view to the Legislative Assembly consisting of eighteen elected
members.
Pending legal proceedings
9. (1) Any cause, matter or appeal pending before the Grand Court or any
appeal or application pending before the Court of Appeal immediately before the
appointed day may, on and after that day, be continued, determined or appealed
against as if such cause, matter or appeal had been instituted or was pending
before the Grand Court, or such appeal or application made to the Court of
Appeal, as the case may be, as those courts are respectively constituted by the
Constitution.
(2) Any decree or order of the Grand Court or the Court of Appeal given
or made before the appointed day, in so far as it has not been fully executed or
enforced, may be executed or enforced on or after that day as if it were a decree
or order of the Grand Court or the Court of Appeal, as the case may be, as those
courts are respectively constituted by the Constitution.
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(3) Any matter pending immediately before the appointed day before a
tribunal appointed under section 49J(4) of the former Constitution may, on and
after that day, be continued and reported upon as if the former Constitution were
still in force, and after the tribunal has reported, section 96 of the Constitution
shall have effect as if the matter had been referred to and considered by the
Judicial and Legal Services Commission and as if the report of the tribunal were a
report of the Judicial and Legal Services Commission under that section.
(4) Any judge of the Grand Court who immediately before the appointed
day is suspended pursuant to section 49J(6) of the former Constitution shall, on
and after that day, remain suspended from performing the functions of his or her
office unless the Governor, acting in his or her discretion, revokes the suspension;
but the suspension shall in any case cease to have effect -
(a) if the tribunal appointed under section 49J(4) of the former
Constitution advises the Governor that he or she should not
request that the question of the removal of the judge be referred
by Her Majesty to the Judicial Committee of Her Majesty’s Privy
Council; or
(b) if the Judicial Committee advises Her Majesty that the judge
ought not to be removed from office.
Judith Simpson
Clerk of the Privy Council
SCHEDULE 1
Revocations
The Cayman Islands (Constitution) Order 1972 (S.I. 1972/1101)
The Cayman Islands (Constitution) (Amendment) Order 1984 (S.I.1984/126)
The Cayman Islands (Constitution) (Amendment) Order 1987 (S.I. 1987/2199)
The Cayman Islands (Constitution) (Amendment) Order 1992 (S.I. 1992/226)
The Cayman Islands (Constitution) (Amendment) Order 1993 (S.I. 1993/3143)
The Cayman Islands (Constitution) (Amendment) Order 2003 (S.I. 2003/1515)
The Cayman Islands (Constitution) (Amendment) Order 2004 (S.I. 2004/2029)
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The Cayman Islands (Constitution) (Amendment No.2) Order 2004 (S.I.
2004/2673)
The Cayman Islands (Constitution) (Amendment) Order 2008 (S.I. 2008/3127)
The Instructions issued under the Royal Sign Manual and Signet to the Governor
of the Cayman Islands on 26th July 1972
SCHEDULE 2
The Constitution of the Cayman Islands
Contents
PART I
BILL OF RIGHTS, FREEDOMS AND RESPONSIBILITIES
1. Guarantee of Rights, Freedoms and Responsibilities
2. Life
3. Torture and inhuman treatment
4. Slavery or forced or compulsory labour
5. Personal liberty
6. Treatment of prisoners
7. Fair trial
8. No punishment without law
9. Private and family life
10. Conscience and religion
11. Expression
12. Assembly and association
13. Movement
14. Marriage
15. Property
16. Non-discrimination
17. Protection of children
18. Protection of the environment
19. Lawful administrative action
20. Education
21. Public emergencies
22. Protection of persons detained under emergency laws
23. Declaration of incompatibility
24. Duty of public officials
25. Interpretive obligation
26. Enforcement of rights and freedoms
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27. Remedies
28. Interpretation of the Bill of Rights
PART II
THE GOVERNOR
29. The office of Governor
30. Oaths to be taken by the Governor
31. Functions of the Governor
32. Exercise of the Governor’s functions
33. The Governor may act contrary to the advice of the Cabinet
34. The office of Deputy Governor
35. Acting Governor
36. Temporary exercise of certain functions of the Governor
37. Emoluments, personal staff and expenditure of the Governor
38. Powers to dispose of land
39. Powers of pardon, etc.
40. Advisory Committee on the Prerogative of Mercy
41. Public seal
42. Constitution of offices
PART III
THE EXECUTIVE
43. Executive authority
44. The Cabinet
45. Meetings of the Cabinet
46. Proceedings in and quorum of the Cabinet
47. Attendance of persons at meetings
48. Cabinet Secretary
49. Appointment of the Premier and other Ministers
50. Functions of the Premier
51. Tenure of office of the Premier
52. Tenure of office of Ministers
53. Performance of functions of Ministers in certain events
54. Allocation of responsibilities to Ministers
55. Special responsibilities of the Governor
56. Attorney General
57. Director of Public Prosecutions
58. National Security Council
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PART IV
THE LEGISLATURE
59. Composition of the Legislature and power to make laws
60. The Legislative Assembly
61. Qualifications for elected membership of the Legislative Assembly
62. Disqualifications for elected membership
63. Tenure of office of elected members
64. Delay in vacation of seat to allow for an appeal
65. Speaker and Deputy Speaker
66. Determination of questions as to membership of the Legislative Assembly
67. Penalty for sitting or voting in the Legislative Assembly when unqualified
68. Leader of the Opposition
69. Power to provide for a referendum
70. People-initiated referendums
71. Standing Orders and committees
72. Presiding in the Legislative Assembly
73. The Legislative Assembly may transact business notwithstanding vacancies
74. Quorum
75. Voting
76. Summoning of persons to assist the Legislative Assembly
77. Introduction of Bills
78. Assent to Bills
79. Return of Bills by the Governor
80. Disallowance of laws
81. Governor’s reserved power
82. Privileges of the Legislative Assembly and its members
83. Sessions of the Legislative Assembly
84. Prorogation and dissolution
85. Recalling dissolved Legislative Assembly
86. General elections and bye-elections
87. Public Accounts Committee
88. Electoral Boundary Commission
89. Review and alteration of electoral district boundaries
90. Qualifications of electors
91. Disqualifications of electors
92. Right to vote at elections
93. Law as to elections
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PART V
THE JUDICATURE
The Grand Court
94. Constitution and jurisdiction of the Grand Court
95. Composition of the Grand Court
96. Tenure of office of judges of the Grand Court
97. Acting judges of the Grand Court
98. Oaths to be taken by judges of the Grand Court
The Court of Appeal
99. Constitution and jurisdiction of the Court of Appeal
100. Composition of the Court of Appeal
101. Tenure of office of judges of the Court of Appeal
102. Acting judges of the Court of Appeal
103. Oaths to be taken by judges of the Court of Appeal
Other matters
104. Subordinate courts
105. Judicial and Legal Services Commission
106. Functions of Judicial and Legal Services Commission
107. Judicial administration
PART VI
THE PUBLIC SERVICE
108. Overriding duty of public officers
109. Appointment, etc., of public officers
110. Applicability of pensions law
PART VII
FINANCE
111. Revenue and Expenditure
112. Reporting
113. Public debt
114. Auditor General
115. Financial Secretary
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PART VIII
INSTITUTIONS SUPPORTING DEMOCRACY
116. Human Rights Commission
117. Commission for Standards in Public Life
118. Constitutional Commission
119. Advisory District Councils
120. Complaints Commissioner
121. Register of Interests
122. Freedom of information
PART IX
MISCELLANEOUS
123. Official language of the Cayman Islands
124. Interpretation
125 Power reserved to Her Majesty
SCHEDULE TO THE CONSTITUTION
FORMS OF OATHS AND AFFIRMATIONS
THE CONSTITUTION OF THE CAYMAN ISLANDS
The people of the Cayman Islands, recalling the events that have shaped their
history and made them what they are, and acknowledging their distinct history,
culture and Christian heritage and its enduring influence and contribution in
shaping the spiritual, moral and social values that have guided their development
and brought peace, prosperity and stability to those islands, through the vision,
forbearance, and leadership of their people, who are loyal to Her Majesty the
Queen;
Affirm their intention to be -
• A God-fearing country based on traditional Christian values, tolerant of
other religions and beliefs.
• A country with open, responsible and accountable government, that
includes a working partnership with the private sector and continuing
beneficial ties with the United Kingdom.
• A country in which religion finds its expression in moral living and
social justice.
• A caring community based on mutual respect for all individuals and
their basic human rights.
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• A country committed to the democratic values of human dignity,
equality and freedom.
• A community that practises honest and open dialogue to ensure mutual
understanding and social harmony.
• A safe, secure and law-abiding community.
• A country that is free from crime and drug abuse.
• A country with an education system that identifies and develops on a
continuing basis the abilities of each person, allowing them to reach
their full potential and productivity.
• A community that encourages and prepares young people to assume
leadership roles.
• A country that provides a comprehensive healthcare system.
• A community protective of traditional Caymanian heritage and the
family unit.
• A country that honours the sacrifice of its seafaring men who left the
shores of the Islands to enhance the quality of life of their people, and in
doing so established themselves amongst the finest within the global
maritime community of that time and through their remittances,
endeavours and experiences built the foundations of the Cayman
Islands’ modern economy.
• A country that honours and acknowledges the important contribution of
Caymanian women who during the absence of the seafaring men of the
Islands managed the affairs of their homes, businesses and communities
and passed on the values and traditions of the Islands’ people.
• A country with a vibrant diversified economy, which provides full
employment.
• A country that makes optimal use of modern technology.
• A country that manages growth and maintains prosperity, while
protecting its social and natural environment.
• A country that respects, protects and defends its environment and natural
resources as the basis of its existence.
• A country that fosters the highest standards of integrity in the dealings of
the private and public sectors.
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• A country with an immigration system that protects Caymanians, gives
security to long-term residents and welcomes legitimate visitors and
workers.
• A country that plays its full part in the region and in the international
community.
Now, therefore, the following provisions shall have effect as the Constitution of
the Cayman Islands.
PART I
BILL OF RIGHTS, FREEDOMS AND RESPONSIBILITIES
Guarantee of Rights, Freedoms and Responsibilities
Whereas all peoples have the right of self-determination and by virtue of that
right they freely determine their political status and freely pursue their economic,
social and cultural development and may, for their own ends, freely dispose of
their natural wealth and resources without prejudice to any obligations arising out
of international economic co-operation, based upon the principle of mutual
benefit and international law;
1. (1) This Bill of Rights, Freedoms and Responsibilities is a cornerstone of
democracy in the Cayman Islands.
(2) This Part of the Constitution -
(a) recognises the distinct history, culture, Christian values and
socio-economic framework of the Cayman Islands and it affirms
the rule of law and the democratic values of human dignity,
equality and freedom;
(b) confirms or creates certain responsibilities of the government and
corresponding rights of every person against the government; and
(c) does not affect, directly or indirectly, rights against anyone other
than the government except as expressly stated.
(3) In this Part “government” shall include public officials (as defined in
section 28) and the Legislature, but shall not include the courts (except in respect
of sections 5, 7, 19 and 23 to 27 inclusive).
Life
2. (1) Everyone’s right to life shall be protected by law.
(2) No person shall intentionally be deprived of his or her life.
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(3) A person shall not be regarded as having been deprived of his or her
life in contravention of this section if he or she dies as a result of the use, to such
extent and in such circumstances as are permitted by law, of such force as is
absolutely necessary -
(a) for the defence of any person from violence;
(b) in order to effect a lawful arrest or to prevent the escape of a
person lawfully detained;
(c) for the purpose of suppressing a riot, insurrection or mutiny;
or if he or she dies as a result of a lawful act of war.
Torture and inhuman treatment
3. No person shall be subjected to torture or inhuman or degrading treatment
or punishment.
Slavery or forced or compulsory labour
4. (1) No person shall be held in slavery or servitude.
(2) No person shall be required to perform forced or compulsory labour.
(3) For the purposes of this section, forced or compulsory labour does not
include -
(a) any labour required in consequence of the sentence or order of a
court;
(b) any labour required of a member of a disciplined force in
pursuance of his or her duties as such or, in the case of
conscientious objectors, labour that they are required to perform
in place of such service;
(c) labour required of any person while he or she is lawfully detained
that is reasonably necessary in the interests of hygiene or for the
maintenance of the place in which he or she is detained; or
(d) any labour required during a period of public emergency or in the
event of any other emergency or calamity that threatens the life
or well-being of the community, to the extent that the requiring
of such labour is reasonably justifiable, in the circumstances of
any situation arising or existing during that period or as a result
of that other emergency or calamity, for the purpose of dealing
with that situation.
Personal liberty
5. (1) No one shall be deprived by government of liberty and security of the
person.
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(2) The right to liberty does not extend to the following measures taken in
relation to a person in accordance with a procedure prescribed by law -
(a) in execution of the sentence or order of a court, whether in the
Cayman Islands or elsewhere, in respect of a criminal offence
under any law of which he or she has been convicted or in
consequence of his or her unfitness to plead to a criminal charge;
(b) in execution of an order of a court punishing him or her for
contempt of that court or of another court;
(c) in execution of the order of a court made in order to secure the
fulfilment of any obligation imposed on him or her by law; but
no person shall be deprived of his or her liberty merely on the
ground of inability to fulfil a contractual obligation;
(d) for the purpose of bringing him or her before a court in execution
of the order of a court;
(e) on reasonable suspicion that he or she has committed, is
committing or is about to commit a criminal offence under any
law;
(f) in the case of a minor, under the order of a court or with the
consent of his or her parent or guardian, for the purpose of his or
her education or welfare;
(g) for the purpose of preventing the spread of an infectious or
contagious disease;
(h) in the case of a person who is, or is reasonably suspected to be, of
unsound mind, addicted to drugs or alcohol, or a vagrant, for the
purpose of his or her care or treatment or the protection of the
community;
(i) for the purpose of preventing the unlawful entry of that person
into the Cayman Islands, or for the purpose of effecting the
expulsion, extradition or other lawful removal of that person
from the Cayman Islands, or for the purpose of restricting that
person while he or she is being conveyed through the Cayman
Islands in the course of his or her extradition or removal as a
convicted person from one country to another;
(j) in execution of the order of a court detaining a person charged
with a criminal offence in respect of whom a special verdict has
been returned that he or she was guilty of the act or omission
charged but was insane when he or she did the act or made the
omission.
(3) Any person who is arrested or detained has the right to remain silent
and shall be informed promptly, in a language that he or she understands, of the
reason for his or her arrest or detention.
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(4) Any person who is arrested or detained shall have the right, at any
stage and at his or her own expense, to retain and instruct without delay a legal
practitioner of his or her own choice, and to hold private communication with
him or her, and in the case of a minor he or she shall also be afforded a
reasonable opportunity of communication with his or her parents or guardian; but
when a person arrested or detained is unable to retain a legal practitioner of his or
her own choice or be represented by a legal practitioner at the public expense in
accordance with section 7(2)(d), he or she may be represented, and hold private
communication with, such person as the court may approve.
(5) Any person who is arrested or detained -
(a) for the purpose of bringing him or her before a court in the
execution of the order of a court; or
(b) on reasonable suspicion of his or her having committed, or being
about to commit, a criminal offence,
and who is not released, shall be brought promptly before a court; and if any
person arrested or detained in such a case as in mentioned in subsection (2)(e) is
not tried within a reasonable time he or she shall (without prejudice to any further
proceedings that may be brought against him or her) be released either
unconditionally or on reasonable conditions, including in particular such
conditions as are reasonably necessary to ensure that he or she appears at a later
date for trial or for proceedings preliminary to trial, and such conditions may
include bail.
(6) Any person who is deprived of his or her liberty by arrest or detention
shall be entitled to take proceedings by which the lawfulness of his or her
detention shall be decided speedily by a court and his or her release ordered if the
detention is not lawful, and he or she shall be entitled to compensation if
unlawfully arrested or detained; but a judicial officer or an officer of a court or a
police officer acting in pursuance of the order of a judicial officer shall not be
personally liable to pay compensation under this subsection in respect of anything
done by him or her in good faith in the discharge of the functions of his or her
office, and any liability to pay any such compensation in respect of that thing
shall be a liability of the Crown.
Treatment of prisoners
6. (1) All persons deprived of their liberty (in this section referred to as
“prisoners”) have the right to be treated with humanity and with respect for the
inherent dignity of the human person.
(2) Save where the interests of defence, public safety, public order, public
morality, public health or the administration of justice otherwise require,
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unconvicted prisoners shall be segregated from convicted prisoners; and every
unconvicted prisoner shall be entitled to be treated in a manner appropriate as an
unconvicted person.
(3) Juvenile prisoners shall be segregated from adult prisoners and every
juvenile prisoner shall be treated in a manner appropriate to his or her age and
legal status and, if he or she is an unconvicted prisoner and unless he or she is
earlier released, shall have any criminal proceedings against him or her pursued
with the greatest possible expedition.
Fair trial
7. (1) Everyone has the right to a fair and public hearing in the determination
of his or her legal rights and obligations by an independent and impartial court
within a reasonable time.
(2) Everyone charged with a criminal offence has the following minimum
rights -
(a) to be presumed innocent until proved guilty according to law;
(b) to be informed promptly, in a language which he or she
understands and in detail, of the nature and cause of the
accusation against him or her;
(c) to have adequate time and the facilities for the preparation of his
or her defence;
(d) to defend himself or herself in person or through legal assistance
of his or her own choosing or, if he or she has not sufficient
means to pay for legal assistance and the interests of justice so
require, through a legal representative at public expense provided
through an established public legal aid scheme as prescribed by
law;
(e) to examine or have examined witnesses against him or her and to
obtain the attendance and examination of witnesses on his or her
behalf under the same conditions as witnesses against him or her;
(f) to have the free assistance of an interpreter if he or she cannot
understand or speak the language used in court;
and, except with his or her own consent, the trial shall not take place in his or her
absence, unless he or she so behaves in the court as to render the continuance of
the proceedings in his or her presence impracticable and the court has ordered
him or her to be removed and the trial to proceed in his or her absence, or unless,
having had reasonable notice of the hearing and of the nature of the offence
charged, he or she is voluntarily absent from the proceedings.
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(3) When a person is tried for any criminal offence, the accused person or
any person authorised by him or her shall, if he or she so requires and subject to
payment of such reasonable fee as may be prescribed by law, be given within a
reasonable time after judgment a copy for the use of the accused person of any
record of the proceedings made by or on behalf of the court.
(4) No person who shows that he or she has been tried by a competent
court for a criminal offence and either convicted or acquitted shall again be tried
for that offence or for any other criminal offence of which he or she could have
been convicted at the trial for that offence, save on the order of a superior court in
the course of appeal or review proceedings relating to the conviction or acquittal.
(5) No person shall be tried for a criminal offence if he or she shows that
he or she has been lawfully pardoned for that offence.
(6) No person who is tried for a criminal offence shall be compelled to
give evidence at the trial.
(7) Every person who has been convicted by a court of a criminal offence
shall have the right to appeal to a superior court against his or her conviction or
his or her sentence or both as may be prescribed by law; but -
(a) nothing in any law shall be held to contravene this subsection -
(i) to the extent that it precludes an appeal by a person against
his or her conviction of an offence if he or she pleaded
guilty to that offence at his or her trial; or
(ii) to the extent that it makes reasonable provision with respect
to the grounds on which any such appeal may be made or
with respect to the practice and procedure to be observed in
relation to the making, hearing and disposal of any such
appeal; and
(b) this subsection shall not apply in relation to the conviction of a
person by a superior court, or in relation to his or her sentence on
such conviction, if he or she was convicted by that court on an
appeal against his or her acquittal by a lower court.
(8) When a person has, by a final decision of a court, been convicted of a
criminal offence and, subsequently, on the ground that a newly-disclosed fact
shows that there has been a miscarriage of justice his or her conviction has been
quashed or he or she has been pardoned, he or she shall be compensated out of
public funds for any punishment that he or she has suffered as a result of the
conviction unless it is proved that the non-disclosure in time of that fact was
wholly or partly his or her fault.
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(9) All proceedings instituted in any court for the determination of the
existence or extent of any civil right or obligation, including the announcement of
the decision of the court, shall be held in public.
(10) Nothing in subsection (1) or (9) shall prevent the court from excluding
from the proceedings persons other than the parties to them and their legal
representatives to such extent as the court -
(a) may be empowered by law to do and may consider necessary or
expedient in circumstances where publicity would prejudice the
interests of justice, or in interlocutory proceedings, or in the
interests of public morality, the welfare of minors or the
protection of commercial confidence or of the private lives of
persons concerned in the proceedings; or
(b) may be empowered or required by law to do in the interests of
defence, public safety, or public order.
(11) Nothing in any law or done under its authority shall be held to
contravene -
(a) subsection (2)(a), to the extent that the law in question imposes
on any person charged with a criminal offence the burden of
proving particular facts;
(b) subsection (2)(e), to the extent that the law in question imposes
conditions that must be satisfied if witnesses called to testify on
behalf of an accused person are to be paid their expenses out of
public funds;
(c) subsection (4), to the extent that the law in question authorises a
court to try a member of a disciplined force for a criminal offence
notwithstanding any trial and conviction or acquittal of that
member under the disciplinary law of that force, save that any
court so trying such a member and convicting him or her shall in
sentencing him or her to any punishment take into account any
punishment imposed on him or her under that disciplinary law.
(12) In this section, “legal representative” means a person entitled to
practise in the Cayman Islands as an attorney-at-law.
No punishment without law
8. (1) No one shall be held guilty of any criminal offence on account of any
act or omission which did not constitute a criminal offence under national or
international law at the time when it was committed; nor shall a heavier penalty
be imposed than the one that was applicable at the time the criminal offence was
committed.
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(2) This section shall not prejudice the trial and punishment of any person
for any act or omission which, at the time when it was committed, was criminal
according to the general principles of law recognised by civilised nations.
Private and family life
9. (1) Government shall respect every person’s private and family life, his or
her home and his or her correspondence.
(2) Except with his or her own consent or as permitted under subsection
(3), no person shall be subjected to the search of his or her person or his or her
property or the entry of persons on his or her premises.
(3) Nothing in any law or done under its authority shall be held to
contravene this section to the extent that it is reasonably justifiable in a
democratic society -
(a) in the interests of defence, public safety, public order, public
morality, public health, town and country planning, or the
development or utilisation of any other property in such a manner
as to promote the public benefit;
(b) for the purpose of protecting the rights and freedoms of other
persons;
(c) to enable an agent of the Government or a public body
established by law to enter on the premises of any person in order
to inspect those premises or anything on them for the purpose of
any tax, rate or due or in order to carry out work connected with
any property that is lawfully on those premises and that belongs
to the Government or that public body;
(d) to authorise, for the purpose of enforcing the judgment or order
of a court, the search of any person or property by order of a
court or the entry on any premises by such order; or
(e) to regulate the right to enter or remain in the Cayman Islands.
Conscience and religion
10. (1) No person shall be hindered by government in the enjoyment of his or
her freedom of conscience.
(2) Freedom of conscience includes freedom of thought and of religion or
religious denomination; freedom to change his or her religion, religious
denomination or belief; and freedom, either alone or in community with others,
both in public and in private, to manifest and propagate his or her religion or
belief in worship, teaching, practice, observance and day of worship.
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(3) Except with his or her consent or, in the case of a minor, the consent of
his or her parent or guardian, no person attending any place of education shall be
required to receive religious instruction or to take part in or attend any religious
ceremony or observance that relates to a religion other than his or her own.
(4) No religious community or denomination shall be prevented from or
hindered in providing religious instruction for persons of that community or
denomination in the course of any education provided by that community or
denomination whether or not that community or denomination is in receipt of any
government subsidy, grant or other form of financial assistance designed to meet,
in whole or in part, the cost of such education; and this right includes the right of
any school or community educational institution to impose requirements on
employment, admission or curriculum-design necessary to maintain the religious
ethos of that school or institution, subject to applicable employment laws in force.
(5) No person shall be compelled to take any oath which is contrary to his
or her religion or belief or to take any oath in a manner which is contrary to his or
her religion or belief.
(6) Nothing in any law or done under its authority shall be held to
contravene this section to the extent that it is reasonably justifiable in a
democratic society -
(a) in the interests of defence, public safety, public order, public
morality or public health; or
(b) for the purpose of protecting the rights and freedoms of other
persons, including the right to observe and practise any religion
or belief without the unsolicited intervention of adherents of any
other religion or belief.
(7) If a court’s determination of any question arising under this Part might
affect the exercise by a religious organisation (itself or its members collectively)
of the right to freedom of conscience as protected by this section, it must have
particular regard to the importance of that right.
Expression
11. (1) No person shall be hindered by government in the enjoyment of his or
her freedom of expression, which includes freedom to hold opinions and to
receive and impart ideas and information without interference, and freedom from
interference with his or her correspondence or other means of communication.
(2) Nothing in any law or done under its authority shall be held to
contravene this section to the extent that it is reasonably justifiable in a
democratic society -
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(a) in the interests of defence, public safety, public order, public
morality or public health;
(b) for the purpose of protecting the rights, reputations and freedoms
of other persons or the private lives of persons concerned in legal
proceedings, preventing the disclosure of information received in
confidence, maintaining the authority and independence of the
courts, or regulating telecommunications, posts, broadcasting or
other means of communication, or public shows or
entertainments; or
(c) for the imposition of restrictions on public officers in the interests
of the proper performance of their functions.
Assembly and association
12. (1) No person shall be hindered by government in the enjoyment of his or
her freedom of peaceful assembly and association, that is to say, his or her right
to assemble freely and associate with other persons and in particular to form or
belong to political parties or to form or belong to trade unions or other
associations for the protection of his or her interests.
(2) Nothing in any law or done under its authority shall be held to
contravene this section to the extent that it is reasonably justifiable in a
democratic society -
(a) in the interests of defence, public safety, public order, public
morality or public health;
(b) for the purpose of protecting the rights and freedoms of other
persons; or
(c) for the imposition of restrictions on public officers in the interests
of the proper performance of their functions.
Movement
13. (1) No person shall be hindered by government in the enjoyment of his or
her freedom of movement, that is to say, the right to move freely throughout the
Cayman Islands, the right to reside in any part of the Cayman Islands, the right to
enter the Cayman Islands, the right to leave the Cayman Islands and immunity
from expulsion from the Cayman Islands.
(2) Nothing in any law or done under its authority shall be held to
contravene this section to the extent that the law in question makes provision -
(a) for the imposition of restrictions on the movement or residence
within the Cayman Islands or on the right to leave the Cayman
Islands of persons generally or any class of persons that are
reasonably justifiable in a democratic society -
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(i) in the interests of defence, public safety, public order,
public morality or public health; or
(ii) for the purpose of protecting the rights and freedoms of
other persons;
(b) for the removal of a person from the Cayman Islands to be tried
or punished in some other country for a criminal offence under
the law of that country or to undergo imprisonment in some other
country in execution of the sentence of a court in respect of a
criminal offence under the law of the Cayman Islands of which
he or she has been convicted;
(c) for the imposition of restrictions on the movement or residence
within the Cayman Islands or the right to leave the Cayman
Islands of public officers that are reasonably required for the
purpose of ensuring the proper performance of their functions;
(d) for the imposition of restrictions on any person who is not a
Caymanian or a permanent resident; but -
(i) no restriction may be imposed by virtue only of this
paragraph on the right of any such person, so long as he or
she is lawfully present in the Cayman Islands, to move
freely throughout the Cayman Islands and to reside
anywhere in the Cayman Islands;
(ii) no restriction may be imposed by virtue only of this
paragraph on the right of any such person to leave the
Cayman Islands; and
(iii) no such person shall be liable, by virtue only of this
paragraph, to be expelled from the Cayman Islands unless
the requirements specified in subsection (3) are satisfied;
(e) for the imposition of restrictions on the acquisition or use by any
person of land or other property in the Cayman Islands;
(f) for the imposition of restrictions, by order of a court, on the
movement or residence within the Cayman Islands of any person
or on any person’s right to leave the Cayman Islands either in
consequence of his or her having been found guilty of a criminal
offence under the law of the Cayman Islands or for the purpose
of ensuring a fair trial or that he or she appears before a court at a
later date for trial or for proceedings relating to his or her
extradition or lawful removal from the Cayman Islands; or
(g) for the imposition of restrictions on the right of any person to
leave the Cayman Islands that are reasonably justifiable in a
democratic society in order to secure the fulfilment of any
obligation imposed on that person by law.
(3) The requirements to be satisfied for the purposes of subsection
(2)(d)(iii) are as follows -
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(a) the decision to expel that person is taken by an authority, in a
manner and on grounds prescribed by law;
(b) that person has the right to submit reasons against his or her
expulsion to a competent authority prescribed by law;
(c) that person has the right, save where a court has recommended
his or her deportation, to have his or her case reviewed by a
competent authority prescribed by law; and
(d) that person has the right to be represented for the purposes of
paragraphs (b) and (c) before the competent authority or some
other person or authority designated by the competent authority;
but paragraphs (b), (c) and (d) shall not apply where the interests of defence,
public safety or public order so require.
(4) Any restriction on a person’s freedom of movement which is involved
in his or her lawful detention shall not be held to contravene this section.
(5) In this section “permanent resident” has the meaning ascribed to it in
the laws of the Cayman Islands for the time being in force.
Marriage
14. (1) Government shall respect the right of every unmarried man and
woman of marriageable age (as determined by law) freely to marry a person of
the opposite sex and found a family.
(2) No person shall be compelled to marry without his or her free and full
consent.
(3) Nothing in any law or done under its authority shall be held to
contravene subsection (1) to the extent that the law makes provision that is
reasonably justifiable in a democratic society -
(a) in the interests of public order, public morality or public health;
(b) for regulating, in the public interest, the procedures and
modalities of marriage; or
(c) for protecting the rights and freedoms of others.
(4) Spouses shall be entitled to equal rights and shall be subject to equal
responsibilities as between themselves and as regards their children both during
and after marriage, but this equality of rights and responsibilities shall be subject
to such arrangements or measures as may be agreed, or as may be ordered by a
court, in the interests of their children.
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Property
15. (1) Government shall not interfere in the peaceful enjoyment of any
person’s property and shall not compulsorily take possession of any person’s
property, or compulsorily acquire an interest in or right over any person’s
property of any description, except in accordance with law and where -
(a) the interference, taking of possession or acquisition is necessary
or expedient in the interests of defence, public safety, public
order, public morality, public health, town and country planning
or the development or utilisation of any property in such manner
as to promote the public benefit or the economic well-being of
the community; and
(b) there is reasonable justification for the causing of any hardship
that may result to any person having an interest in or right over
the property; and
(c) provision is made by a law applicable to that interference, taking
of possession or acquisition -
(i) for the prompt payment of adequate compensation; and
(ii) securing to any person having an interest in or right over the
property a right of access to the Grand Court, whether direct
or on appeal from any other authority, for the determination
of his or her interest or right, the legality of the interference
with, taking of possession or acquisition of the property,
interest or right, and the amount of any compensation to
which he or she is entitled, and for the purpose of obtaining
prompt payment of that compensation; and
(iii) giving to any party to proceedings in the Grand Court
relating to such a claim the same rights of appeal as are
accorded generally to parties to civil proceedings in that
Court sitting as a court of original jurisdiction.
(2) Nothing in any law or done under its authority shall be held to
contravene subsection (1) -
(a) to the extent that the law in question makes provision for the
interference with, taking of possession or acquisition of any
property, interest or right -
(i) in satisfaction of any tax, rate or due;
(ii) by way of penalty for breach of any law or forfeiture in
consequence of a breach of any law;
(iii) as an incident of a lease, tenancy, mortgage, charge, bill of
sale, pledge or contract;
(iv) by way of taking of a sample for the purposes of any law;
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(v) where the property consists of an animal, on its being found
trespassing or straying;
(vi) in the execution of judgments or orders of a court;
(vii) by reason of its being in a dilapidated or dangerous state or
injurious to the health of human beings, animals or plants;
(viii) in consequence of any law with respect to prescription or
the limitation of actions; or
(ix) for so long only as may be necessary for the purposes of
any examination, investigation, trial or inquiry, or, in the
case of land, for the purposes of carrying out on it work of
reclamation, drainage, soil conservation or the conservation
of other natural resources or work relating to agricultural
development or improvement (being work relating to such
development or improvement that the owner or occupier of
the land has been required, and has, without reasonable and
lawful excuse, refused or failed to carry out),
except so far as that provision of law or, as the case may be, the
thing done under its authority is shown not to be reasonably
justifiable in a democratic society; or
(b) to the extent that the law in question makes provision for the
taking of possession or acquisition of any of the following
property (including an interest in or right over property), that is to
say -
(i) enemy property;
(ii) property of a person who has died, a person of unsound
mind or a minor, for the purpose of its administration for
the benefit of the persons entitled to the beneficial interest
in it;
(iii) property of a person adjudged bankrupt or a body corporate
in liquidation, for the purpose of its administration for the
benefit of the creditors of the bankrupt or body corporate
and, subject thereto, for the benefit of other persons entitled
to the beneficial interest in the property; or
(iv) property subject to a trust, for the purpose of vesting the
property in persons appointed as trustees under the
instrument creating the trust or by a court or, by order of a
court, for the purpose of giving effect to the trust.
(3) Nothing in any law or done under its authority shall be held to
contravene subsection (1) to the extent that the law in question makes provision
for the interference with or compulsory taking of possession in the public interest
of any property, or the compulsory acquisition in the public interest of any
interest in or right over property, where that property, interest or right is held by a
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body corporate established by law for public purposes in which no moneys have
been invested other than moneys provided from public funds.
Non-discrimination
16. (1) Subject to subsections (3), (4), (5) and (6), government shall not treat
any person in a discriminatory manner in respect of the rights under this Part of
the Constitution.
(2) In this section, “discriminatory” means affording different and
unjustifiable treatment to different persons on any ground such as sex, race,
colour, language, religion, political or other opinion, national or social origin,
association with a national minority, age, mental or physical disability, property,
birth or other status.
(3) No law or decision of any public official shall contravene this section
if it has an objective and reasonable justification and is reasonably proportionate
to its aim in the interests of defence, public safety, public order, public morality
or public health.
(4) Subsection (1) shall not apply to any law so far as that law makes
provision -
(a) for the appropriation of revenues or other funds of the Cayman
Islands or for the imposition of taxation (including the levying of
fees for the grants of licences);
(b) with respect to the entry into or exclusion from, or the
employment, engaging in any business or profession, movement
or residence within, the Cayman Islands of persons who are not
Caymanian;
(c) for the application, in the case of persons of any such description
of grounds as is mentioned in subsection (2) (or of persons
connected with such persons), of the law with respect to
adoption, marriage, divorce, burial, devolution of property on
death or other like matters that is the personal law applicable to
persons of that description; or
(d) whereby persons of any such description of grounds as is
mentioned in subsection (2) may be subjected to any disability or
restriction or may be accorded any privilege or advantage which,
having regard to its nature and to special circumstances
pertaining to those persons or to persons of any other such
description, is objectively and reasonably justifiable in a
democratic society and there is a reasonable proportionality
between the means employed and the purpose sought to be
realised.
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(5) Nothing in any law shall be held to contravene subsection (1) to the
extent that it requires a person to be a Caymanian, or to possess any other
qualification (not being a qualification specifically relating to any such
description of grounds as is mentioned in subsection (2)) in order to be eligible
for appointment to any office in the public service or in a disciplined force or any
office in the service of a local government authority or of a body corporate
established directly by any law for public purposes.
(6) Subsection (1) shall not apply to anything which is expressly or by
necessary implication authorised to be done by any such provision of law as is
referred to in subsection (3), (4) or (5).
(7) Subsection (1) is without prejudice to any restriction on the rights and
freedoms guaranteed by section 9, 10, 11, 12, 13 or 14 if that restriction would, in
accordance with that section, be a restriction authorised for the purposes of that
section on the ground that -
(a) the provision by or under which it is imposed is reasonably
required in the interests of a matter, or for the purpose, specified
in that section; and
(b) the provision and the restriction imposed under it are reasonably
justifiable in a democratic society.
Protection of children
17. (1) In addition to the provisions of this Part which afford protection to
children, the Legislature shall enact laws to provide every child and young person
under the age of eighteen (referred to in this section as a “child”) with such
facilities as would aid their growth and development, and to ensure that every
child has the right -
(a) to a name from birth;
(b) to family care or parental care, or to appropriate alternative care
when removed from the family environment;
(c) to basic nutrition, shelter, basic health care services and social
services;
(d) to be protected from maltreatment, neglect, abuse or degradation;
(e) to be protected from exploitative labour practices;
(f) not to be required or permitted to perform work or provide
services that -
(i) are inappropriate for a child of that age; or
(ii) place at risk the child’s well-being, education, physical or
mental health or spiritual, moral or social development;
(g) not to be detained except as a measure of last resort, in which
case, in addition to the rights a child enjoys under sections 5 and
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22, the child may be detained only for the shortest appropriate
period of time, and shall be treated in a manner and kept in
conditions that take account of his or her age;
(h) to have a legal practitioner assigned to the child by the
Government, and at public expense, in civil proceedings affecting
the child, if substantial injustice would result; and
(i) not to be used directly in armed conflict, and to be protected in
times of armed conflict.
(2) In implementing subsection (1), the Legislature shall proceed on the
basis that a child’s best interests are of paramount importance in every matter
concerning the child.
Protection of the environment
18. (1) Government shall, in all its decisions, have due regard to the need to
foster and protect an environment that is not harmful to the health or well-being
of present and future generations, while promoting justifiable economic and
social development.
(2) To this end government should adopt reasonable legislative and other
measures to protect the heritage and wildlife and the land and sea biodiversity of
the Cayman Islands that -
(a) limit pollution and ecological degradation;
(b) promote conservation and biodiversity; and
(c) secure ecologically sustainable development and use of natural
resources.
Lawful administrative action
19. (1) All decisions and acts of public officials must be lawful, rational,
proportionate and procedurally fair.
(2) Every person whose interests have been adversely affected by such a
decision or act has the right to request and be given written reasons for that
decision or act.
Education
20. (1) This section is without prejudice to section 10.
(2) Government shall seek reasonably to achieve the progressive
realisation, within available resources, of providing every child with primary and
secondary education which shall, subject to subsection (3), be free.
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(3) Every person who is the parent or legal guardian of a child shall be
entitled to have his or her child (of whatever age) educated, at his or her own
expense unless a law otherwise provides, in a private school (that is to say, a
school other than one established by a public authority) and, in such a school, to
ensure the religious and moral education of his or her child in accordance with his
or her own convictions.
(4) Nothing contained in any law or done under its authority shall be held
to contravene subsection (3) to the extent that it is reasonably justifiable in a
democratic society and to the extent that the law makes provision requiring
private schools, as a condition of their being allowed to operate and on terms no
more onerous than are applicable to schools established by a public authority, to
satisfy -
(a) such minimum educational standards (including standards
relating to the qualifications of teaching staff and other staff) as
may be prescribed by or under any law; and
(b) such minimum standards imposed in the interests of public order,
public morality or public health as may be so prescribed.
Public emergencies
21. (1) A period of public emergency may be declared by the Governor, by
proclamation published in the manner provided in subsection (2), when -
(a) the well-being or security of the Cayman Islands is threatened by
war, invasion, general insurrection, public disorder, natural
disaster or other public emergency; and
(b) the declaration is considered necessary by the Governor to
maintain or restore peace and order.
(2) A proclamation shall be taken to be published if it is published in a
Government Notice or in a newspaper published in the Cayman Islands, or if it is
posted in prominent public places or announced on the radio.
(3) Without prejudice to the power of the Legislature to make laws under
this Constitution, during a period of public emergency the Governor may make
such regulations for the Cayman Islands as appear to him or her to be necessary
or expedient for securing the public safety, the defence of the Cayman Islands or
the maintenance of public order, or for maintaining supplies and services
essential to the life of the community.
(4) Regulations made under subsection (3) shall -
(a) have effect only prospectively;
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(b) have effect, subject to this section, notwithstanding the
provisions of any other law in force in the Cayman Islands or any
rule of law having effect in the Islands;
(c) unless previously revoked, expire at the end of the period of
public emergency during which they were made unless provision
for their continuance in force (with or without modification) is
made by the Legislature.
(5) Nothing in any law or done under its authority shall be held to be
inconsistent with or in contravention of section 5, section 7 or any provision of
sections 9 to 16 (inclusive) to the extent that the law in question authorises the
taking during any period of public emergency of measures that are reasonably
justifiable for dealing with the situation that exists in the Cayman Islands during
that period.
(6) Before exercising any function under subsection (1) or (3) or under
any law enacted by the Legislature to like effect, the Governor shall consult the
Cabinet or, if that is not practicable in the circumstances, the Premier; but if in
the judgement of the Governor it is impracticable for him or her to consult either
the Cabinet or the Premier, the function shall be exercised by the Governor acting
in his or her discretion.
(7) Where the Governor has consulted the Cabinet or the Premier under
subsection (6), the Governor shall not be obliged to act in accordance with any
advice given to him or her.
(8) Where any proclamation of emergency has been made by the
Governor under subsection (1), a copy of the proclamation shall as soon as
practicable be laid before and debated in the Legislative Assembly; and if the
Assembly is not due to meet within five days of the making of that proclamation
it shall meet within that period or as soon as practicable thereafter.
(9) A proclamation of emergency shall, unless it is sooner revoked by the
Governor, cease to be in force at the expiration of a period of fourteen days
beginning on the date on which it was made or such longer period as may be
provided under subsection (10), but without prejudice to the making of another
proclamation of emergency at or before the end of that period.
(10) If at any time while a proclamation of emergency is in force (including
any time while it is in force by virtue of this subsection) a resolution is passed by
the Legislative Assembly approving its continuation in force for a further period
not exceeding three months, beginning on the date on which it would otherwise
expire, the proclamation shall, if not sooner revoked, continue in force for that
further period.
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(11) Nothing in this section or in any emergency regulations shall be
construed to preclude the Legislative Assembly from -
(a) meeting whenever practicable in accordance with its Standing
Orders; and
(b) directing that reports relating to the emergency, including the
implementation of any emergency regulations, be prepared and
presented in such manner and within such periods to the
Legislative Assembly as the Assembly may determine.
Protection of persons detained under emergency laws
22. (1) When a person is detained by virtue of any law in relation to a period
of public emergency the following provisions shall apply -
(a) notification shall, not more than ten days after the
commencement of his or her detention, be published in a public
place (and thereafter as soon as possible in a Government Notice)
stating that he or she has been detained and giving particulars of
the provision of law by virtue of which his or her detention is
authorised;
(b) he or she shall (if not sooner released), as soon as reasonably
practicable and in any case not more than four days after the
commencement of his or her detention, be informed, in a
language that he or she understands, of the grounds on which he
or she is detained and furnished with a written statement;
(c) his or her case shall, not more than 30 days after the
commencement of his or her detention and thereafter during the
detention at intervals of not more than three months, be reviewed
by an independent and impartial tribunal established by law and
presided over by a person appointed by the Chief Justice;
(d) he or she shall be afforded reasonable opportunity to consult a
legal practitioner of his or her own choice and to hold private
communication with him or her; and
(e) he or she shall, at the hearing of his or her case by the tribunal
appointed for its review, be permitted to appear in person or by a
legal practitioner of his or her own choice.
(2) For the purposes of subsection (1)(d) and (e), if the detained person is
unable to retain a legal practitioner of his or her own choice, the tribunal may
approve such person as it deems fit to make representations to it; but nothing in
subsection (1)(d) or (e) shall be construed as entitling a detained person to legal
representation at public expense.
(3) On any review by a tribunal of the case of a detained person under this
section, the tribunal may make recommendations concerning the necessity or
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expediency of continuing his or her detention to the authority by which it was
ordered but, unless it is otherwise provided by law, that authority shall not be
obliged to act in accordance with any such recommendations.
Declaration of incompatibility
23. (1) If in any legal proceedings primary legislation is found to be
incompatible with this Part, the court must make a declaration recording that the
legislation is incompatible with the relevant section or sections of the Bill of
Rights and the nature of that incompatibility.
(2) A declaration of incompatibility made under subsection (1) shall not
constitute repugnancy to this Order and shall not affect the continuation in force
and operation of the legislation or section or sections in question.
(3) In the event of a declaration of incompatibility made under subsection
(1), the Legislature shall decide how to remedy the incompatibility.
Duty of public officials
24. It is unlawful for a public official to make a decision or to act in a way that
is incompatible with the Bill of Rights unless the public official is required or
authorised to do so by primary legislation, in which case the legislation shall be
declared incompatible with the Bill of Rights and the nature of that
incompatibility shall be specified.
Interpretive obligation
25. In any case where the compatibility of primary or subordinate legislation
with the Bill of Rights is unclear or ambiguous, such legislation must, so far as it
is possible to do so, be read and given effect in a way which is compatible with
the rights set out in this Part.
Enforcement of rights and freedoms
26. (1) Any person may apply to the Grand Court to claim that government
has breached or threatened his or her rights and freedoms under the Bill of Rights
and the Grand Court shall determine such an application fairly and within a
reasonable time.
(2) If, in any proceedings in any court established in the Cayman Islands
other than the Grand Court or the Court of Appeal, any issue arises as to the
interpretation of the Bill of Rights, the court in which the question has arisen
shall refer the question to the Grand Court if it is in its opinion necessary for the
issue to be determined.
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(3) An appeal shall lie as of right to the Court of Appeal from any final
determination of any issue by the Grand Court under the Bill of Rights, and an
appeal shall lie as of right from the Court of Appeal to Her Majesty in Council;
but no appeal shall lie from a determination by the Grand Court under this section
dismissing an application on the ground that it is frivolous or vexatious.
(4) Proceedings under subsection (1) shall be commenced within one year
of the decision or act that is claimed to breach the Bill of Rights, or from the date
on which such decision or act could reasonably have been known to the
complainant; but the Grand Court shall extend time on application by the
complainant where such an extension would in the opinion of the Court be in the
interests of justice.
(5) Nothing in this section adversely affects the ability of courts to
manage their own procedure to ensure that cases are dealt with justly, fairly and
expeditiously, including their ability to dismiss applications that are vexatious or
unreasonable.
Remedies
27. (1) In relation to any decision or act of a public official which the court
finds is (or would be) unlawful, it may grant such relief or remedy, or make such
order, within its powers as it considers just and appropriate.
(2) No award of damages is to be made unless, taking account of all the
circumstances of the case, including -
(a) any other relief or remedy granted, or order made, in relation to
the act in question (by that or any other court); and
(b) the consequences of any decision (of that or any other court) in
respect of that act,
the court is satisfied that the award is necessary to afford just satisfaction to the
person in whose favour it is made.
Interpretation of the Bill of Rights
28. In this Part -
“act” includes a failure to act but excludes a failure to introduce before the
Legislative Assembly, or for the Legislature to enact, primary legislation;
“Caymanian” has the meaning ascribed to it in the laws of the Cayman Islands for
the time being in force;
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“contravene” in relation to any requirement includes failure to comply with that
requirement, and cognate expressions shall be construed accordingly;
“court” includes tribunal;
“disciplined force” means -
(a) a naval, military or air force;
(b) any police force or prison service in the Cayman Islands;
“member” of a disciplined force is a person who, under the law regulating the
discipline of that force, is subject to that discipline;
“minor” means a person who has not attained the age of eighteen years or such
other age as may be prescribed for this purpose by any law;
“primary legislation” means a Law enacted by the Legislature;
“public official” -
(c) includes a public or governmental body, including any statutory
body or company or association in which the Cayman Islands has
an interest and which performs a public function or duty;
(d) includes any organisation or person carrying out a public
function or duty, including the Governor, except where the nature
of their act is private;
(e) unless otherwise stated, excludes private schools (whether or not
in receipt of government funding, subsidy or other assistance),
churches, the Legislature and the courts.
PART II
THE GOVERNOR
The office of Governor
29. There shall be a Governor of the Cayman Islands who shall be appointed by
Her Majesty and shall hold office during Her Majesty’s pleasure.
Oaths to be taken by the Governor
30. Before assuming the functions of his or her office, the person appointed to
be Governor shall make oaths of allegiance and for the due execution of his or
her office before the Chief Justice in the forms set out in the Schedule to this
Constitution.
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Functions of the Governor
31. (1) The Governor shall have such functions as are prescribed by this
Constitution and any other law, and such other functions as Her Majesty may
from time to time be pleased to assign to him or her in exercise of the Royal
prerogative.
(2) The Governor shall exercise his or her functions in accordance with
this Constitution and any other law and, subject thereto, in accordance with such
instructions (if any) as may be addressed to the Governor by or on behalf of Her
Majesty.
(3) In the exercise of his or her functions under subsection (2), the
Governor shall endeavour to promote good governance and to act in the best
interests of the Cayman Islands so far as such interests are consistent with the
interests of the United Kingdom.
(4) Notwithstanding the jurisdiction of the courts in respect of functions
exercised by the Governor, the question of whether or not the Governor has in
any matter complied with any instructions addressed to him or her by or on behalf
of Her Majesty shall not be inquired into in any court.
Exercise of the Governor’s functions
32. (1) Subject to subsection (2), the Governor shall consult with the Cabinet
in the exercise of all functions conferred on him or her by this Constitution or any
other law, insofar as it is reasonably practicable to do so and unless the matter is
not materially significant such as to require consultation.
(2) The Governor shall not be obliged to consult with the Cabinet in the
exercise of -
(a) any function conferred by this Constitution which the Governor
is empowered to exercise in his or her discretion or judgement or
in pursuance of instructions addressed to him or her by or on
behalf of Her Majesty;
(b) any function conferred by this Constitution or any other law
which the Governor is empowered or directed, either expressly or
by necessary implication, to exercise without consulting the
Cabinet or to exercise on the recommendation or advice of, or
after consultation with, any person or authority other than the
Cabinet; or
(c) the special responsibilities of the Governor set out in section 55,
other than external affairs.
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(3) The Governor shall keep the Cabinet informed concerning the general
conduct of all matters for which he or she is responsible, and of any matters that
in his or her judgement may involve the economic or financial interests of the
Cayman Islands or the enactment of laws under this Constitution.
(4) Where the Governor is by this Constitution or any other law directed
to exercise any function after consultation with any person or authority other than
the Cabinet he or she shall not be obliged to exercise that function in accordance
with the advice of that person or authority.
(5) Where the Governor is by this Constitution or any other law directed
to exercise any function in accordance with the recommendation or advice of, or
after consultation with, any person or authority, the question of whether or not he
or she has so exercised that function shall not be inquired into in any court.
The Governor may act contrary to the advice of the Cabinet
33. (1) Subject to subsection (2), in any case where the Governor is required
to consult with the Cabinet he or she shall act in accordance with the advice given
to him or her by the Cabinet.
(2) The Governor may act against the advice given to him or her by the
Cabinet -
(a) if he or she is instructed to do so by Her Majesty through a
Secretary of State; or
(b) if, in his or her judgement, such advice would adversely affect
any of the special responsibilities of the Governor set out in
section 55.
(3) Whenever the Governor acts otherwise than in accordance with the
advice given to him or her by the Cabinet, his or her reasons shall be recorded in
the minutes, and any member of the Cabinet may require that there be recorded in
the minutes the grounds of any advice or opinion which he or she may have given
on the question.
The office of Deputy Governor
34. (1) There shall be a Deputy Governor who shall be such person as Her
Majesty may designate as such by instructions given through a Secretary of State
and who shall hold office during Her Majesty’s pleasure.
(2) A person shall not be designated as Deputy Governor unless -
(a) he or she is a Caymanian; and
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(b) he or she holds or has held a senior position in the public service
and is still eligible to hold public office.
(3) For the purposes of subsection (2), “senior position in the public
service” means head of department or head of a statutory authority or
Government-owned company or above.
(4) The Deputy Governor shall have such functions as (subject to this
Constitution and any other law) may be delegated to him or her by the Governor,
acting in his or her discretion.
(5) Under the authority of the Governor, the Deputy Governor shall be
head of the civil service.
Acting Governor
35. (1) During any period when the office of Governor is vacant or the
Governor is absent from the Cayman Islands or is for any other reason unable to
perform the functions of his or her office, those functions shall be assumed and
performed by -
(a) the Deputy Governor; or
(b) if the office of Deputy Governor is vacant or the Deputy
Governor is absent from the Cayman Islands or is for any other
reason unable to perform those functions, such public officer,
being a Caymanian, as Her Majesty may designate by
instructions given through a Secretary of State (“the person
designated”).
(2) Before assuming the functions of the office of Governor, the Deputy
Governor or the person designated shall make the oaths directed by section 30 to
be made by the Governor.
(3) The Deputy Governor shall cease to perform the functions of the office
of Governor after the Governor has notified him or her that he or she is about to
resume or assume those functions, and the person designated shall cease to
perform those functions after the Governor or Deputy Governor has so notified
him or her.
(4) The Governor or the Deputy Governor shall not, for the purposes of
this section, be regarded as absent from the Cayman Islands or as unable to
perform the functions of his or her office -
(a) by reason that he or she is in passage from one part of the
Cayman Islands to another; or
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(b) at any time when there is a subsisting appointment under section
36.
(5) In this section, “Governor” means the person holding the office of
Governor, and “Deputy Governor” means the person holding the office of Deputy
Governor.
Temporary exercise of certain functions of the Governor
36. (1) Whenever the Governor -
(a) has occasion to be absent from Grand Cayman but not from the
Cayman Islands;
(b) intends to be absent from the Cayman Islands for a short period;
or
(c) is suffering from any illness which he or she believes will be of
short duration,
the Governor may, acting in his or her discretion and by instrument under the
public seal, appoint the Deputy Governor (or if the Deputy Governor is not
available any other public officer in the Cayman Islands who is a Caymanian)
during such absence or illness to perform on his or her behalf such of the
functions of the office of Governor as may be specified in the instrument.
(2) The power and authority of the Governor shall not be affected by an
appointment under this section, and a person so appointed shall comply with such
instructions as the Governor, acting in his or her discretion, may from time to
time address to him or her; but the question of whether or not that person has in
any matter complied with any such instructions shall not be inquired into in any
court.
(3) A person appointed under this section shall hold that appointment for
such period as may be specified in the instrument by which he or she is
appointed, and the appointment may be revoked at any time by Her Majesty by
instructions given through a Secretary of State or by the Governor, acting in his
or her discretion.
Emoluments, personal staff and expenditure of the Governor
37. (1) The Governor shall receive such emoluments as may for the time
being be fixed by a Secretary of State by directions in writing, and those
emoluments are hereby charged on and shall be paid out of the revenues of the
Cayman Islands.
(2) A law enacted by the Legislature may prescribe the offices that are to
constitute the personal staff of the Governor, the salaries and allowances that are
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to be paid to the members of that staff and the other sums that are to be paid in
respect of the expenditure attaching to the office of Governor; but no such law
shall apply to such members of the personal staff of the Governor as are recruited
and paid under the authority of a Secretary of State.
(3) Any salaries, allowances or other sums prescribed under subsection (2)
are hereby charged on and shall be paid out of the revenues of the Cayman
Islands.
Powers to dispose of land
38. Subject to any law for the time being in force in the Cayman Islands, the
Governor or any person duly authorised by him or her in writing under his or her
hand may, in Her Majesty’s name and on Her Majesty’s behalf, make and
execute under the public seal grants and dispositions of any land or other
immovable property within the Cayman Islands that may be lawfully granted or
disposed of by Her Majesty.
Powers of pardon, etc.
39. (1) The Governor may, in Her Majesty’s name and on Her Majesty’s
behalf -
(a) grant to any person concerned in or convicted of any offence
against any law in force in the Cayman Islands a pardon, either
free or subject to lawful conditions;
(b) grant to any person a respite, either indefinite or for a specified
period, from the execution of any sentence passed on that person
for such an offence;
(c) substitute a less severe form of punishment for that imposed by
any sentence for such an offence; or
(d) remit the whole or any part of any sentence passed for such an
offence or any penalty or forfeiture otherwise due to Her Majesty
on account of such an offence.
(2) In the exercise of his or her powers under this section the Governor
shall consult the Committee established by section 40, but he or she shall decide
whether to exercise any of those powers in any case in his or her discretion,
whether the members of the Committee concur in his or her decision or
otherwise.
Advisory Committee on the Prerogative of Mercy
40. (1) There shall be in and for the Cayman Islands an Advisory Committee
on the Prerogative of Mercy, which shall consist of the Attorney General, the
Chief Medical Officer and four other members, of which two shall be appointed
by the Governor acting after consultation with the Premier and two shall be
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appointed by the Governor acting after consultation with the Leader of the
Opposition.
(2) The Committee shall not be summoned except by the authority of the
Governor, acting in his or her discretion; and the Governor shall preside at all
meetings of the Committee.
(3) No business shall be transacted at any meeting of the Committee
unless there are at least three members present, of whom one shall be the
Attorney General.
(4) The office as a member of the Committee of any member appointed by
the Governor under subsection (1) shall become vacant if the Governor, acting
after consultation with the Premier and the Leader of the Opposition, revokes his
or her appointment as a member of the Committee.
(5) Subject to subsection (3), the Committee shall not be disqualified for
the transaction of business by reason of any vacancy in its membership, and the
validity of the transaction of any business by the Committee shall not be affected
by reason only of the fact that some person who was not entitled to do so took
part in the proceedings.
(6) Subject to this section the Committee may regulate its own
proceedings.
Public seal
41. The Governor shall keep and use the public seal for sealing all things that
should pass that seal.
Constitution of offices
42. Subject to this Constitution and any other law, the Governor, in Her
Majesty’s name and on Her Majesty’s behalf, may constitute offices for the
Cayman Islands.
PART III
THE EXECUTIVE
Executive authority
43. (1) The executive authority of the Cayman Islands is vested in Her
Majesty.
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(2) Subject to this Constitution, the executive authority of the Cayman
Islands shall be exercised on behalf of Her Majesty by the Government,
consisting of the Governor as Her Majesty’s representative and the Cabinet,
either directly or through public officers.
(3) Nothing in this section shall preclude persons or authorities other than
the Government from exercising such functions as are or may be conferred on
them by any law.
The Cabinet
44. (1) There shall be a Cabinet in and for the Cayman Islands, which shall
consist of -
(a) a Premier appointed by the Governor in accordance with section
49(2) or (3);
(b) six other Ministers, one of whom shall be Deputy Premier,
appointed by the Governor, acting in accordance with the advice
of the Premier, from among the elected members of the
Legislative Assembly; and
(c) the Deputy Governor and the Attorney General, ex officio.
(2) The number of Ministers referred to in subsection (1) may be increased
by a law made pursuant to section 60(2) which increases the number of elected
members of the Legislative Assembly; but in no circumstances may the number
of Ministers exceed two-fifths of the total number of elected members of the
Assembly.
(3) The Cabinet shall have responsibility for the formulation of policy,
including directing the implementation of such policy, insofar as it relates to
every aspect of government except those matters for which the Governor has
special responsibility under section 55, and the Cabinet shall be collectively
responsible to the Legislative Assembly for such policies and their
implementation.
(4) Subject to this Constitution, the Cabinet shall determine its own
procedures for the conduct of its business.
Meetings of the Cabinet
45. (1) The Cabinet shall meet regularly at such times as its rules and
procedures may prescribe, and shall also meet whenever the Premier, or the
Governor, acting in his or her discretion, so requests.
(2) Upon receiving such a request, the Cabinet Secretary shall summon the
Cabinet.
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Proceedings in and quorum of the Cabinet
46. (1) The Governor shall, so far as is practicable, attend and preside at
meetings of the Cabinet.
(2) In the absence of the Governor from any meeting of the Cabinet, the
Cabinet shall be chaired by the Premier or, in the absence of the Premier, the
Deputy Premier.
(3) The Governor and the Premier shall together set the agenda for every
meeting of the Cabinet, and each shall be entitled to inscribe items on the agenda.
(4) A quorum for any meeting of the Cabinet is a majority of Ministers.
(5) Subject to subsection (4), the Cabinet shall not be disqualified for the
transaction of business by reason of any vacancy in its membership (including
any vacancy not filled when the Cabinet is first constituted or is reconstituted at
any time) and the validity of the transaction of business in the Cabinet shall not
be affected by reason only of the fact that some person who was not entitled to do
so took part in the proceedings.
(6) The Deputy Governor and the Attorney General shall not be entitled to
vote in the Cabinet.
Attendance of persons at meetings
47. (1) The person presiding over any meeting of the Cabinet may summon
any public officer or invite any other person to a meeting of the Cabinet
whenever the business before the Cabinet renders the presence of that officer or
other person desirable.
(2) If the presence of any person summoned or invited under subsection
(1) is objected to by any member of the Cabinet, the person shall only attend the
meeting to which he or she has been summoned or invited with the agreement of
the Cabinet.
(3) Where an electoral district is not represented in the Cabinet, the
member or members of the Legislative Assembly representing that district shall
be entitled to attend a meeting convened by the Cabinet once every three months
for the purpose of -
(a) making representations with respect to matters affecting their
district; and
(b) making budgetary representations when the Annual Plan and
Estimates are being developed.
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Cabinet Secretary
48. (1) There shall be -
(a) a Cabinet Office, which shall be an office in the Government;
and
(b) a Cabinet Secretary, whose office shall be a public office, who
shall be a person who is a Caymanian and who shall be appointed
by the Governor, acting after consultation with the Premier.
(2) The Cabinet Secretary shall have charge of the Cabinet Office.
(3) The responsibilities of the Cabinet Secretary shall include -
(a) providing frank and politically neutral advice to the Governor,
the Cabinet and the Premier on matters of policy;
(b) co-ordinating the development and implementation of policy
between departments and ministerial portfolios and across the
wider Government sector to ensure that Government policy is
developed coherently;
(c) providing for administrative and secretarial support for the
Cabinet and the Premier in order to allow high-quality and
effective government;
(d) arranging the business for, and keeping the minutes of, the
meetings of the Cabinet or any Cabinet committee and conveying
the conclusions reached at the meetings to the appropriate person
or authority;
and the Cabinet Secretary shall have such other functions as the Governor, acting
after consultation with the Premier, may from time to time direct.
(4) The Cabinet Secretary shall also -
(a) transmit copies of all papers submitted for consideration by the
Cabinet or any Cabinet committee to the Governor and all
members of the Cabinet;
(b) inform the Governor and all members of the Cabinet of the
summoning of any meeting of the Cabinet or any Cabinet
committee and of the matters to be discussed at any meeting of
the Cabinet or any Cabinet committee; and
(c) furnish the Governor and all members of the Cabinet, as soon as
practicable after each meeting of the Cabinet or any Cabinet
committee, with a copy of the confirmed minutes of the previous
meeting showing the matters discussed and the conclusions
reached at the meeting.
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Appointment of the Premier and other Ministers
49. (1) The Premier shall be appointed by the Governor as follows.
(2) Where a political party gains a majority of the seats of elected
members of the Legislative Assembly, the Governor shall appoint as Premier the
elected member of the Assembly recommended by a majority of the elected
members who are members of that party.
(3) If no political party gains such a majority or if no recommendation is
made under subsection (2), the Speaker shall cause a ballot to be held among the
elected members of the Legislative Assembly to determine which elected member
commands the support of the majority of such members, and shall record the vote
of each member voting; and, where such a ballot is held, the Governor shall
appoint as Premier the elected member who obtains a majority of the votes of the
elected members.
(4) Notwithstanding subsections (2) and (3), the Governor shall not
appoint as Premier a person who has held office as Premier during two
consecutive parliamentary terms unless at least one parliamentary term has
expired since he or she last held that office; and for the purposes of this
subsection a parliamentary term shall be deemed to be a period commencing
when the Legislative Assembly first meets after being constituted under this
Constitution or after its dissolution at any time, and terminating when the
Assembly is next dissolved.
(5) After his or her appointment, the Premier shall advise the Governor to
appoint the other Ministers.
(6) Appointments of the Premier and the other Ministers shall be made by
the Governor by instrument under the public seal.
(7) If occasion arises for making an appointment of any Minister between
a dissolution of the Legislative Assembly and the polling in the next following
general election, a person who was an elected member of the Assembly
immediately before the dissolution may be appointed as a Minister.
(8) The Governor shall without delay report to Her Majesty through a
Secretary of State every appointment made under this section.
(9) The members of the Cabinet shall each, before assuming the functions
of his or her office, make before the Governor oaths of allegiance and for the due
execution of his or her office in the forms set out in the Schedule to this
Constitution.
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(10) The Governor and the Premier shall confer on a regular basis and the
Premier shall brief and keep the Governor fully informed about the policies of the
Government and the public affairs of the Cayman Islands.
Functions of the Premier
50. The Premier shall have such functions as are conferred on him or her by or
under this Constitution, and shall exercise those functions in accordance with this
Constitution and any other law and in the best interests of the Cayman Islands.
Tenure of office of the Premier
51. (1) The Governor shall, by instrument under the public seal, revoke the
appointment of the Premier if a motion that the Legislative Assembly should
declare a lack of confidence in the Government receives the affirmative votes of
not less than two-thirds of the elected members of the Assembly; but before so
revoking the Premier’s appointment, the Governor shall consult the Premier and
may, acting in his or her discretion, dissolve the Assembly instead of revoking
the appointment.
(2) The Premier shall vacate his or her office if, after the polling in a
general election, the Governor, acting in his or her discretion, informs him or her
that he or she is about to appoint another person as Premier.
Tenure of office of Ministers
52. (1) Any Minister shall vacate his or her office -
(a) if he or she ceases to be a member of the Legislative Assembly
for any reason other than its dissolution;
(b) if he or she is not a member of the Assembly when it first meets
after a general election;
(c) if he or she resigns his or her office by writing under his or her
hand addressed to the Governor; or
(d) if he or she is absent from the Cayman Islands or absent from
three consecutive meetings of the Cabinet without -
(i) in the case of the Premier, having given the Governor prior
notice of such absence; or
(ii) in the case of any other Minister, having obtained written
permission for such absence from the Governor, acting in
accordance with the advice of the Premier.
(2) A Minister other than the Premier shall also vacate his or her office if -
(a) the Premier vacates his or her office; or
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(b) his or her appointment is revoked by the Governor, acting in
accordance with the advice of the Premier, by instrument under
the public seal.
Performance of functions of Ministers in certain events
53. (1) If the Premier is unable, due to illness or absence from the Cayman
Islands, to perform the functions of his or her office, the Governor shall authorise
the Deputy Premier to perform those functions; and in the absence or illness of
the Deputy Premier, the Governor shall authorise another Minister to perform
those functions, acting in accordance with the advice of the Premier or, if it is
impracticable to obtain the advice of the Premier, acting in his or her discretion
but after consulting the Cabinet.
(2) Whenever a Minister other than the Premier is unable, by reason of
illness or absence from the Cayman Islands or absence from his or her duties on
leave, to perform the functions of his or her office, the Governor, acting in
accordance with the advice of the Premier, may -
(a) appoint a person who is an elected member of the Legislative
Assembly to be a temporary Minister; or
(b) assign responsibility for the performance of the functions of that
Minister to another Minister (including the Premier),
and may specify the period for which such person shall be a temporary Minister
or for which such other Minister shall perform the functions of that Minister.
(3) If occasion arises for making an appointment under subsection (2)(a)
between a dissolution of the Legislative Assembly and the next following general
election, subsection (2) shall have effect for the purpose as if the Assembly had
not been dissolved.
(4) Subject to this Constitution -
(a) a temporary Minister shall hold office; and
(b) a Minister assigned to perform the functions of another Minister
shall perform those functions,
until the expiry of the period specified under subsection (2) or, where no period
was so specified, until he or she is notified by the Governor in writing that he or
she shall cease to hold that office or to perform those functions.
(5) Any authorisation, appointment or assignment under this section shall
be made by the Governor by instrument under the public seal, and may be
revoked in like manner.
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Allocation of responsibilities to Ministers
54. (1) The Governor, acting in accordance with the advice of the Premier,
shall by directions in writing -
(a) charge any Minister with responsibility for the conduct (subject
to this Constitution and any other law) of any business of the
Government including responsibility for the administration of
any department of government;
(b) designate the style by which any Minister so charged shall be
known,
but a Minister shall be charged with responsibility for finance.
(2) If the persons appointed as Ministers do not include an elected member
of the Legislative Assembly representing Cayman Brac and Little Cayman, the
Minister with responsibility for District Administration should ensure that the
District Commissioner liaises with the members of the Assembly representing
Cayman Brac and Little Cayman.
(3) Nothing in this section shall empower the Governor to confer on any
Minister authority to exercise any function that is conferred by this Constitution
or any other law on any person or authority other than a Minister.
(4) Without prejudice to the generality of subsection (3), except for the
purpose of submitting questions relating to such matters to the Cabinet and
conducting business relating to such matters in the Legislative Assembly, a
Minister shall not be charged under this section with responsibility for -
(a) any matter for which the Governor, acting in his or her
discretion, is responsible under section 55;
(b) the discharge by the courts of their judicial functions;
(c) the initiation, conduct and discontinuance of criminal
proceedings; or
(d) the audit of the accounts of the Cayman Islands or any authority
or office of the Government or of the courts.
(5) Ministers shall be collectively responsible to the Legislative Assembly
with respect to any matter for which a Minister is responsible under this section.
(6) A Minister charged under subsection (1) with responsibility for the
conduct of any business of the Government may be assisted in the discharge of
that responsibility by a board, committee or other similar body consisting wholly
or partly of persons who are not public officers and established by a law made
under this Constitution or by directions in writing given by the Minister
concerned; and any such body shall have such advisory, consultative and
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administrative functions as may be conferred on it by such a law or directions,
but, in exercising any such functions, the body shall be subject to the directions of
the Minister concerned.
(7) Where a Minister has been charged under subsection (1) with
responsibility for the administration of any department of government, the
Minister shall (subject to this Constitution and any other law) exercise general
direction and control over the department, and, subject to such direction and
control, the department shall be under the supervision of a public officer; but two
or more departments of government may be placed under the supervision of one
public officer.
(8) The Governor, acting in his or her discretion, may at any time call for
any official papers or seek any official information or advice available to a
Minister with respect to a matter for which that Minister is responsible under this
section.
Special responsibilities of the Governor
55. (1) The Governor shall be responsible for the conduct, subject to this
Constitution and any other law, of any business of the Government with respect
to the following matters -
(a) defence;
(b) external affairs, subject to subsections (3) and (4);
(c) internal security including the police, without prejudice to section
58;
(d) the appointment (including the appointment on promotion or
transfer, appointment on contract and appointment to act in an
office) of any person to any public office, the suspension,
termination of employment, dismissal or retirement of any public
officer or taking of disciplinary action in respect of such an
officer, the application to any public officer of the terms or
conditions of employment of the public service (including salary
scales, allowances, leave, passages and pensions) for which
financial provision has been made, and the organisation of the
public service to the extent that it does not involve new financial
provision.
(2) The Governor, acting after consultation with the Premier, may assign
or delegate to any member of the Cabinet, by instrument in writing and on such
terms and conditions as he or she may impose, responsibility for the conduct on
behalf of the Governor of any business in the Legislative Assembly with respect
to any of the matters listed in subsection (1).
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(3) The Governor shall not enter, agree or give final approval to any
international agreement, treaty or instrument that would affect internal policy or
require implementation by legislation in the Cayman Islands without first
obtaining the agreement of the Cabinet, unless instructed otherwise by a
Secretary of State.
(4) The Governor shall, acting after consultation with the Premier, assign
or delegate to the Premier or another Minister, by instrument in writing and on
the terms and conditions set out in subsection (5), responsibility for the conduct
of external affairs insofar as they relate to any matters falling within the
portfolios of Ministers, including -
(a) the Caribbean Community, the Association of Caribbean States,
the United Nations Economic Commission for Latin America and
the Caribbean, or any other Caribbean regional organisation or
institution;
(b) other Caribbean regional affairs relating specifically to issues that
are of interest to or affect the Cayman Islands;
(c) tourism and tourism-related matters;
(d) taxation and the regulation of finance and financial services; and
(e) European Union matters directly affecting the Cayman Islands.
(5) The terms and conditions referred to in subsection (4) are the
following -
(a) separate authority shall be required from or on behalf of a
Secretary of State for the commencement of formal negotiation
and the conclusion of any treaty or other international agreement
by the Government;
(b) no political declaration, understanding or arrangement in the field
of foreign policy shall be signed or supported in the name of the
Government without the prior approval of a Secretary of State;
(c) a formal invitation to a member of government or Head of State
of another country to visit the Cayman Islands shall not be issued
without prior consultation with the Governor;
(d) the costs of any activities in pursuance of subsection (4) shall be
borne by the Government;
(e) the Premier or other Minister shall keep the Governor fully
informed of any activities in pursuance of subsection (4);
(f) the Premier or other Minister shall provide the Governor on
request all papers and information, including the text of any
instrument under negotiation, available to the Premier or other
Minister with respect to any activities in pursuance of subsection
(4); and
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(g) any directions given by the Governor on any matter which in his
or her judgement might affect defence or security shall be
complied with.
(6) In the event of any disagreement regarding the exercise of any
authority delegated or assigned under subsection (4), the matter shall be referred
to a Secretary of State whose decision on the matter shall be final and whose
directions shall be complied with.
(7) The Governor may, by directions in writing and with the prior
approval of a Secretary of State, delegate or assign such other matters relating to
external affairs to the Premier or another Minister designated by the Premier as
the Governor thinks fit on such conditions as he or she may impose.
Attorney General
56. (1) There shall be an Attorney General of the Cayman Islands, whose
office shall be a public office and who shall be appointed in accordance with
section 106.
(2) The Attorney General shall be the principal legal adviser to the
Government and the Legislative Assembly.
Director of Public Prosecutions
57. (1) There shall be a Director of Public Prosecutions for the Cayman
Islands, whose office shall be a public office and who shall be appointed in
accordance with section 106.
(2) The Director of Public Prosecutions shall have power, in any case in
which he or she considers it desirable to do so -
(a) to institute and undertake criminal proceedings against any
person before any court in respect of any offence against any law
in force in the Cayman Islands;
(b) to take over and continue any such criminal proceedings that
have been instituted by any other person or authority; and
(c) to discontinue at any stage before judgment is delivered any such
criminal proceedings instituted or undertaken by himself or
herself or any other person or authority.
(3) The powers of the Director of Public Prosecutions under subsection (2)
may be exercised by him or her in person or by officers subordinate to him or her
acting under and in accordance with his or her general or special instructions.
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(4) The powers conferred on the Director of Public Prosecutions by
subsection (2)(b) and (c) shall be vested in him or her to the exclusion of any
other person or authority; but where any other person or authority has instituted
criminal proceedings, nothing in this subsection shall prevent the withdrawal of
those proceedings by or at the instance of that person or authority at any stage
before the person against whom the proceedings have been instituted has been
charged before the court.
(5) For the purposes of this section, any appeal from any determination in
any criminal proceedings before any court, or any case stated or question of law
reserved for the purpose of any such proceedings, to any other court or to Her
Majesty in Council shall be deemed to be part of those proceedings.
(6) In the exercise of the powers conferred on him or her by this section,
the Director of Public Prosecutions shall not be subject to the direction or control
of any other person or authority.
National Security Council
58. (1) There shall be in and for the Cayman Islands a National Security
Council which shall consist of -
(a) the Governor, as Chairman;
(b) the Premier;
(c) two other Ministers appointed in writing by the Governor, acting
in accordance with the advice of the Premier;
(d) the Leader of the Opposition or his or her designate;
(e) two persons representative of civil society appointed in writing
by the Governor, acting after consultation with the Premier and
the Leader of the Opposition;
(f) the Deputy Governor, ex officio;
(g) the Attorney General, ex officio; and
(h) the Commissioner of Police, ex officio.
(2) A Minister appointed under subsection (1)(c) shall vacate his or her
seat on the National Security Council if -
(a) his or her office becomes vacant under section 52; or
(b) the Governor so directs in writing, acting in accordance with the
advice of the Premier.
(3) A person appointed under subsection (1)(e) may be appointed for a
period of up to two years, and may be reappointed.
(4) The National Security Council shall advise the Governor on matters
relating to internal security, with the exception of operational and staffing
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matters, and the Governor shall be obliged to act in accordance with the advice of
the Council, unless he or she considers that giving effect to the advice would
adversely affect Her Majesty’s interest (whether in respect of the United
Kingdom or the Cayman Islands); and where the Governor has acted otherwise
than in accordance with the advice of the Council, he or she shall report to the
Council at its next meeting.
(5) The Commissioner of Police shall -
(a) provide regular briefings to the National Security Council on
matters of internal security, including the police force save
insofar as to do so would prejudice current operations;
(b) have responsibility for the day to day operation of the police
force and shall report regularly on such operation to the
Governor; and
(c) inform the Premier of any significant security developments in
the Cayman Islands, including the occurrence of any significant
criminal activity.
(6) Before assuming office each member of the National Security Council
shall sign a declaration that he or she will not disclose to any other person,
without the permission of the Governor, information acquired as a member of the
Council; and, without prejudice to any other penalties that may be imposed under
any other law, the Governor, acting in his or her discretion, may by published
directions in writing exclude from the activities of the Council, or revoke the
membership of the Council of, any member who breaches such a declaration.
(7) Where the Governor has good reason to believe that there has been a
breach by a member of the declaration made pursuant to subsection (6), the
Governor, acting in his or her discretion, may suspend from the activities of the
Council that member while the question of a breach is being investigated; and
any such investigation shall be concluded expeditiously.
(8) The National Security Council may invite any person or summon any
public officer to attend and participate in, or provide briefings to, the Council on
the areas of their work bearing on internal security.
(9) The Governor, acting in his or her discretion, may summon a meeting
of the National Security Council whenever he or she considers it desirable to do
so, and the Governor shall summon such a meeting whenever the Premier so
requests.
(10) Subject to this section, the National Security Council may regulate its
own procedure.
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(11) The Cabinet Secretary shall be the Secretary to the National Security
Council.
PART IV
THE LEGISLATURE
Composition of the Legislature and power to make laws
59. (1) There shall be a Legislature of the Cayman Islands which shall consist
of Her Majesty and a Legislative Assembly.
(2) Subject to this Constitution, the Legislature may make laws for the
peace, order and good government of the Cayman Islands.
The Legislative Assembly
60. (1) The Legislative Assembly shall consist of -
(a) the Speaker;
(b) eighteen elected members, who shall be persons qualified for
election in accordance with this Constitution and elected in the
manner provided for in a law enacted for the purposes of section
93; and
(c) the Deputy Governor and the Attorney General, ex officio.
(2) A law made under section 59(2) may increase the number of elected
members of the Legislative Assembly; but no such law shall come into force -
(a) unless an order by the Governor providing for the electoral
districts and their boundaries to take account of the additional
elected members in accordance with section 89 has been made;
and
(b) until the dissolution of the Legislative Assembly next following
the enactment of such law.
(3) No member of the Legislative Assembly shall be permitted to take part
in the proceedings of the Assembly, other than proceedings necessary for the
purposes of this subsection or the election of a Speaker, until he or she has made
and subscribed before the Assembly oaths of allegiance and for the due execution
of his or her office in the forms set out in the Schedule to this Constitution.
Qualifications for elected membership of the Legislative Assembly
61. (1) Subject to section 62, a person shall be qualified to be elected as a
member of the Legislative Assembly if, and shall not be qualified to be so elected
unless -
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(a) he or she is a Caymanian; and
(b) he or she has attained the age of 21 years; and
(c) he or she is, at the date of his or her nomination for election,
domiciled and resident in the Cayman Islands; and
(d) he or she is a qualified citizen; and either
(e) he or she was born in the Cayman Islands, or was born outside
the Cayman Islands in the circumstances mentioned in subsection
(2)(b), has resided in the Cayman Islands for a period of not less
than seven years immediately preceding the date of his or her
nomination for election and, subject to subsection (3), the
number of days on which he or she was absent from the Cayman
Islands in that period does not exceed 400; or
(f) if he or she was born outside the Cayman Islands, has resided in
the Cayman Islands for a period or periods amounting to not less
than fifteen years out of the twenty years immediately preceding
the date of his or her nomination for election, and, subject to
subsection (3), in the seven years immediately preceding the date
of his or her nomination for election the number of days on
which he or she was absent from the Cayman Islands does not
exceed 400.
(2) For the purposes of subsection (1)(d), a qualified citizen is a British
overseas territories citizen by virtue of a connection with the Cayman Islands,
who either -
(a) at the date of his or her nomination for election possesses no
other citizenship and is pursuing no claim to any other citizenship
for which he or she may be eligible; or
(b) was born outside the Cayman Islands, has or had at least one
parent or grandparent who was born in the Cayman Islands and is
a Caymanian (or if deceased would if alive have been a
Caymanian at the date of nomination for election), and who at the
date of his or her nomination for election possesses no other
citizenship save for any right he or she may have to some other
citizenship by virtue of his or her birth outside the Cayman
Islands;
and in this subsection the words “other citizenship” do not include British
citizenship acquired by virtue of the British Overseas Territories Act 2002(3).
(3) In ascertaining whether a person has been absent from the Cayman
Islands for the purposes of subsection (1)(e) or (f), any period of absence by
reason of the following shall be disregarded -
(a) the performance of duty on behalf of the Government;
(b) attendance as a student at any educational establishment;
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(c) attendance as a patient at any hospital, clinic or other medical
institution;
(d) employment as a seaman aboard an ocean-going vessel; or
(e) employment as a crew member on any aircraft.
Disqualifications for elected membership
62. (1) No person shall be qualified to be elected as a member of the
Legislative Assembly who -
(a) is, by virtue of his or her own act, under any acknowledgement of
allegiance, obedience or adherence to a foreign power or state;
(b) holds, or is acting in, any public office;
(c) has been adjudged or otherwise declared bankrupt under any law
in force in any part of the Commonwealth or the United States of
America and has not been discharged;
(d) is a person certified to be insane or otherwise adjudged to be of
unsound mind under any law in force in the Cayman Islands;
(e) subject to subsection (2), is serving or has served a sentence of
imprisonment (by whatever name called) exceeding twelve
months imposed on him or her by a court in any country or
substituted by competent authority for some other sentence
imposed on him or her by such a court, or is under such a
sentence of imprisonment the execution of which has been
suspended, or has been convicted by any court in any country of
an offence involving dishonesty;
(f) is disqualified for election by any law in force in the Cayman
Islands by reason of his or her holding, or acting in, any office
the functions of which involve -
(i) any responsibility for, or in connection with, the conduct of
any election; or
(ii) any responsibility for the compilation or revision of any
electoral register;
(g) is a party to, or a partner in a firm or a director or manager of a
company which is a party to, any contract with the Government
for or on account of the public service and has not, within the
period of one month immediately preceding the date of an
election in which he or she is a candidate, caused to be published
a Government Notice setting out the nature of such contract and
his or her interest, or the interest of any such firm or company, in
it; or
(h) is disqualified for membership of the Assembly by any law in
force in the Cayman Islands relating to offences connected with
elections.
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(2) For the purposes of subsection (1)(e) and section 63(g) -
(a) where a person is serving two or more sentences of imprisonment
that are required to be served consecutively he or she shall,
throughout the whole time during which he or she so serves, be
regarded as serving a sentence exceeding twelve months if (but
not unless) any one of those sentences exceeds that term; and
(b) no account shall be taken of a sentence of imprisonment imposed
as an alternative to or in default of the payment of a fine.
Tenure of office of elected members
63. The seat of an elected member of the Legislative Assembly shall become
vacant -
(a) upon a dissolution of the Assembly;
(b) if he or she is absent from the sittings of the Assembly for such
period and in such circumstances as may be prescribed in the
Standing Orders of the Assembly;
(c) if he or she ceases to be a Caymanian;
(d) if he or she ceases to be resident in the Cayman Islands;
(e) if he or she resigns his or her seat by writing under his or her
hand addressed to the Governor;
(f) if he or she becomes a party to any contract with the Government
for or on account of the public service, or if any firm in which he
or she is a partner or any company of which he or she is a
director or manager becomes a party to any such contract, or if he
or she becomes a partner in a firm or a director or manager of a
company which is a party to any such contract; but if in the
circumstances it appears to it to be just to do so, the Assembly
may exempt any elected member from vacating his or her seat
under this paragraph if the member, before or as soon as
practicable after becoming a party to the contract, or before or as
soon as practicable after becoming otherwise interested in the
contract (whether as a partner in a firm or as a director or
manager of a company), discloses to the Assembly or, if that is
impracticable, to the Clerk of the Assembly the nature of the
contract and his or her interest or the interest of the firm or
company in it; or
(g) subject to section 64, if any circumstances arise that, if he or she
were not a member of the Assembly, would cause him or her to
be disqualified for election to it by virtue of any provision of
section 62(1) other than paragraph (g).
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Delay in vacation of seat to allow for an appeal
64. (1) If circumstances such as are referred to in section 63(g) arise because a
member is adjudged or declared bankrupt, is certified insane or adjudged of
unsound mind, is under sentence of imprisonment, is convicted of an offence
involving dishonesty or is convicted of an offence relating to elections, and it is
open to the member to appeal against the decision (either with or without the
leave of a court or other authority), he or she shall forthwith cease to perform his
or her functions as a member of the Legislative Assembly, but, subject to
subsection (2), he or she shall not vacate his or her seat until the expiration of a
period of 30 days thereafter; but the Governor may, at the request of the member,
extend that period to enable the member to pursue any appeal against the
decision, save that extensions of time exceeding in the aggregate 150 days shall
not be given without the approval of the Assembly.
(2) If, on the determination of any appeal, such circumstances as aforesaid
continue to exist and no further appeal is open to the member, or if for any
reason, including the refusal of leave to appeal or the expiration of any time for
entering an appeal, it ceases to be open to the member to appeal, he or she shall
forthwith vacate his or her seat.
(3) If at any time before the member vacates his or her seat such
circumstances as aforesaid cease to exist, his or her seat shall not become vacant
on the expiration of the period referred to in subsection (1) and he or she may
resume the performance of his or her functions as a member.
Speaker and Deputy Speaker
65. (1) At the first sitting of the Legislative Assembly after a general election,
and as soon as practicable after a vacancy occurs in the relevant office otherwise
than on a dissolution of the Assembly, the elected members of the Assembly shall
by a majority vote elect -
(a) a Speaker from among the elected members of the Assembly, or
persons who are qualified to be elected as members of the
Assembly, other than Ministers; and
(b) a Deputy Speaker from among the elected members of the
Assembly other than Ministers;
and the election of the Speaker and the Deputy Speaker shall take precedence
over any other business of the Assembly.
(2) A person shall vacate the office of Speaker or Deputy Speaker -
(a) upon a dissolution of the Legislative Assembly;
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(b) if he or she informs the Assembly, by writing addressed to the
Assembly and received by the Clerk of the Assembly, that he or
she resigns his or her office;
(c) in any circumstances which, in the case of the Speaker, would
cause him or her to vacate his or her seat as, or if he or she were,
a member of the Assembly, or, in the case of the Deputy Speaker,
if he or she ceases to be an elected member of the Assembly;
(d) if, on the date of his or her election as Speaker or Deputy
Speaker, he or she is a party to, or a partner in a firm or a director
or manager of a company which is a party to, any contract with
the Government or if, on any date after such election he or she or
a firm in which he or she is a partner or a company of which he
or she is a director or manager becomes a party to any such
contract or he or she becomes a partner in a firm or a director or
manager of a company which is a party to any such contract, and
he or she does not, before the expiration of 30 days from the date
in question, disclose to the Assembly or, if that is impracticable,
to the Clerk of the Assembly in writing the nature of such
contract and his or her interest, or the interest of such a firm or
company, in it and the Assembly does not exempt him or her
from vacating his or her office under this paragraph;
(e) if he or she becomes a Minister; or
(f) on the passing, by the votes of two-thirds of the elected members
of the Assembly, of a motion expressing no confidence in him or
her as Speaker or Deputy Speaker, as the case may be.
(3) If the office of Speaker or Deputy Speaker becomes vacant, the
Legislative Assembly shall elect another Speaker or Deputy Speaker fulfilling the
requirements of subsection (1)(a) and (b).
Determination of questions as to membership of the Legislative Assembly
66. (1) Any question whether a person has been validly elected as a member
of the Legislative Assembly, or whether an elected member of the Assembly has
vacated his or her seat in it, shall be determined by the Grand Court, whose
decision shall be final and not subject to any appeal.
(2) An application to the Grand Court for the determination of any
question whether a person has been validly elected as a member of the
Legislative Assembly may be made by -
(a) a person who voted or had the right to vote at the election to
which the application relates;
(b) a person claiming to have had the right to be returned at such
election;
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(c) a person alleging himself or herself to have been a candidate at
such election; or
(d) the Attorney General.
(3) An application to the Grand Court for the determination of any
question whether an elected member of the Legislative Assembly has vacated his
or her seat in it may be made by -
(a) any elected member of the Assembly; or
(b) the Attorney General.
(4) If any application referred to in subsection (2) or (3) is made by a
person other than the Attorney General, the Attorney General may intervene and
may then appear or be represented in the proceedings.
(5) A law enacted by the Legislature may make provision with respect to -
(a) the time within which, the circumstances and manner in which
and the imposition of conditions under which, any application
may be made to the Grand Court for the determination of any
question under this section;
(b) the powers, practice and procedure of the Grand Court in relation
to any such application.
(6) In the exercise of the powers conferred on him or her by this section
and section 67, the Attorney General shall not be subject to the direction or
control of any other person or authority.
Penalty for sitting or voting in the Legislative Assembly when unqualified
67. (1) Any person who sits or votes in the Legislative Assembly knowing or
having reasonable grounds for knowing that he or she is not entitled to do so shall
be liable to a penalty not exceeding 500 dollars for each day on which he or she
so sits or votes.
(2) Any such penalty shall be recoverable as a debt by civil action in the
Grand Court at the suit of the Attorney General.
Leader of the Opposition
68. (1) There shall be a Leader of the Opposition who shall be appointed by
the Governor.
(2) The Governor shall appoint as the Leader of the Opposition -
(a) the elected member of the Legislative Assembly recommended
by a majority of the elected members of the Assembly who are
members of any opposition political party whose numerical
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strength in the Assembly is greater than that of any other
opposition political party;
(b) if it appears to the Governor that there is no such party but that
there is an elected member of the Assembly who would be
acceptable as Leader of the Opposition to a majority of the
members of the Assembly in opposition to the Government, that
member; or
(c) if it appears to the Governor that there is no such person, then the
Governor shall appoint as Leader of the Opposition that person
who in his or her opinion would be acceptable to the greatest
number of members of the Assembly in opposition to the
Government.
(3) If at any time between the polling in a general election and the next
following dissolution of the Legislative Assembly the Governor is satisfied that,
if the office of the Leader of the Opposition were then vacant, he or she would
appoint to that office a person other than the person then holding it, the Governor
shall revoke the appointment of the Leader of the Opposition.
(4) The office of the Leader of the Opposition shall also become vacant -
(a) if for any reason other than a dissolution of the Legislative
Assembly the holder of that office ceases to be a member of the
Assembly;
(b) when the Assembly first meets after a general election;
(c) if the holder of that office becomes a member of the Cabinet; or
(d) if the holder of that office resigns it by writing under his or her
hand addressed to the Governor.
(5) The Governor, acting in accordance with the advice of the Leader of
the Opposition, shall appoint a Deputy Leader of the Opposition from among the
elected members of the Legislative Assembly in opposition to the Government.
(6) The office of Deputy Leader of the Opposition shall become vacant -
(a) if his or her appointment is revoked by the Governor, acting in
accordance with the advice of the Leader of the Opposition; or
(b) in any of the circumstances specified in subsection (4)(a), (b), (c)
and (d).
(7) In this section “opposition political party” includes a group of
members of the Legislative Assembly in opposition to the Government who are
prepared to support one of their number as their leader.
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Power to provide for a referendum
69. A law enacted by the Legislature may make provision to hold a referendum
amongst persons registered as electors in accordance with section 90, on a matter
or matters of national importance, when so resolved by the majority of the elected
members of the Assembly; but the question of whether the Cayman Islands
should seek any amendment to this Constitution that may result in their
independence shall be deemed to be a matter of national importance.
People-initiated referendums
70. (1) Without prejudice to section 69, a law enacted by the Legislature shall
make provision to hold a referendum amongst persons registered as electors in
accordance with section 90 on a matter or matters of national importance that do
not contravene any part of the Bill of Rights or any other part of this Constitution.
(2) Before a referendum under this section may be held -
(a) there shall be presented to the Cabinet a petition signed by not
less than 25 per cent of persons registered as electors in
accordance with section 90;
(b) the Cabinet shall settle the wording of a referendum question or
questions within a reasonable time period as prescribed by law;
and
(c) the Cabinet shall make a determination on the date the
referendum shall be held in a manner prescribed by law.
(3) Subject to this Constitution, a referendum under this section shall be
binding on the Government and the Legislature if assented to by more than 50 per
cent of persons registered as electors in accordance with section 90.
Standing Orders and committees
71. (1) Subject to this Constitution, the Legislative Assembly may from time
to time make, amend and revoke Standing Orders for the regulation and orderly
conduct of its own proceedings and the dispatch of business, and for the passing,
intituling and numbering of Bills and for their presentation to the Governor for
assent; but no such Standing Orders or amendment or revocation of them shall
have effect unless they have been approved by the Governor.
(2) Standing Orders must provide for fair procedures, adequate notice of
Bills and motions, and a sufficient opportunity for members of the Legislative
Assembly (including opposition members) to speak and otherwise participate in
the proceedings of the Assembly.
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(3) Standing Orders shall not be suspended or revoked without good
reason.
(4) In any matter not provided for in Standing Orders, resort shall be had
to the usage and practice of the House of Commons of the United Kingdom,
which shall be followed as far as the same may be applicable to the Legislative
Assembly and not inconsistent with Standing Orders nor with the practice of the
Assembly.
(5) In cases of doubt, Standing Orders shall be interpreted in the light of
the relevant usage and practice of the House of Commons, but no restriction
which the House of Commons has introduced by standing order after the making
of such Standing Orders shall be deemed to extend to the Legislative Assembly
or its members until the Assembly has by Standing Orders provided for such
restriction.
(6) Standing Orders shall make provision for the establishment of a
Finance Committee of the Legislative Assembly to consider in detail the
estimates of revenue and expenditure of the Cayman Islands laid before the
Assembly by the Minister responsible for finance, and to examine and consider
all financial Bills and such other matters relating to the finances of the Cayman
Islands as may from time to time be referred to it by the Assembly and to report
on them to the Assembly.
(7) The Finance Committee shall consist of all the elected members of the
Legislative Assembly and shall be chaired by the Minister responsible for
finance.
(8) Standing Orders may also establish one or more other standing
committees of the Legislative Assembly, each of which may be charged with
responsibility for monitoring the conduct of business of the Government for
which responsibility has been assigned to a Minister under section 54.
(9) The composition of all such standing committees shall, so far as
possible, reflect proportionately the numerical strength of all political parties or
groups making up the elected membership of the Legislative Assembly.
(10) Any standing committee so established shall have power to summon
any Minister, the Deputy Governor, the Attorney General or any public officer of
a department of Government for which a Minister is responsible to appear before
it, and to require any Minister or other person so summoned to answer questions
and provide information about the conduct of business of the Government by the
Minister or department concerned or, as the case may be, by the Deputy
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Governor or the Attorney General, and to report on its activities to the Legislative
Assembly.
Presiding in the Legislative Assembly
72. At sittings of the Legislative Assembly there shall preside -
(a) the Speaker; or
(b) in the absence of the Speaker, the Deputy Speaker; or
(c) in the absence of the Speaker and the Deputy Speaker, such one
of the elected members other than a Minister as may be elected
by the elected members.
The Legislative Assembly may transact business notwithstanding vacancies
73. The Legislative Assembly shall not be disqualified for the transaction of
business by reason of any vacancy in its membership (including any vacancy not
filled when the Assembly is first constituted or is reconstituted at any time) and
any proceedings in it shall be valid even though some person who was not
entitled to do so sat or voted in the Assembly or otherwise took part in those
proceedings.
Quorum
74. (1) If at any sitting of the Legislative Assembly a quorum is not present
and any member of the Assembly who is present objects on that account to the
transaction of business and, after such interval as may be prescribed in Standing
Orders, the person presiding at the sitting ascertains that a quorum is still not
present, he or she shall adjourn the Assembly.
(2) For the purposes of this section a quorum shall consist of a majority of
the elected members of the Legislative Assembly in addition to the person
presiding.
Voting
75. (1) Save as otherwise provided in this Constitution, all questions proposed
for decision in the Legislative Assembly shall be determined by a majority of
votes of the members present and voting.
(2) The Speaker or other member presiding shall not vote unless on any
question the votes are equally divided, in which case he or she shall have and
exercise a casting vote.
(3) The Deputy Governor and the Attorney General shall not be entitled to
vote.
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Summoning of persons to assist the Legislative Assembly
76. The Speaker or other person presiding may, when in his or her opinion the
business before the Legislative Assembly makes it desirable, summon any person
to a meeting of the Assembly even though that person is not a member of the
Assembly.
Introduction of Bills
77. (1) Subject to this Constitution and Standing Orders, any member may
introduce any Bill or propose any motion for debate in, or may present any
petition to, the Legislative Assembly, and the same shall be debated and disposed
of according to Standing Orders.
(2) Standing Orders shall require that, except in a case of emergency,
every Bill introduced by the Government shall be published at least 21 days
before the commencement of the meeting at which it is scheduled to be
introduced.
(3) Except on the recommendation of the Minister responsible for finance,
the Legislative Assembly shall not -
(a) proceed upon any Bill (including any amendment to a Bill)
which, in the opinion of the Speaker, makes provision for
imposing or increasing any tax, for imposing or increasing any
charge on the revenues or other funds of the Cayman Islands, for
altering any such charge otherwise than by reducing it, or for
compounding or remitting any debt due to the Cayman Islands;
(b) except in the case of a motion proposing a resolution under
section 69, proceed upon any motion (including any amendment
to a motion) the effect of which, in the opinion of the person
presiding in the Assembly, is that provision would be made for
any of the purposes aforesaid; or
(c) receive any petition which, in the opinion of the person presiding
in the Assembly, requests that provision be made for any of the
purposes aforesaid.
Assent to Bills
78. (1) A Bill shall not become a law until -
(a) the Governor has assented to it in Her Majesty’s name and on
Her Majesty’s behalf and has signed it in token of his or her
assent; or
(b) Her Majesty has given Her assent to it through a Secretary of
State and the Governor has signified Her assent by proclamation.
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(2) When a Bill is presented to the Governor for his or her assent, he or
she shall, subject to this Constitution and any instructions addressed to him or her
by Her Majesty through a Secretary of State, declare that he or she assents or
refuses to assent to it or that he or she reserves the Bill for the signification of Her
Majesty’s pleasure; but, unless he or she has been authorised by a Secretary of
State to assent to it, the Governor shall reserve for the signification of Her
Majesty’s pleasure any Bill which appears to him or her, acting in his or her
discretion -
(a) to be in any way repugnant to, or inconsistent with, this
Constitution;
(b) to determine or regulate the privileges, immunities or powers of
the Legislative Assembly or of its members;
(c) to be inconsistent with any obligation of Her Majesty or of Her
Majesty’s Government in the United Kingdom towards any other
State or any international organisation;
(d) to be likely to prejudice the Royal prerogative;
(e) to affect any matter for which the Governor is responsible under
section 55; or
(f) to affect the integrity or independence of the public service or of
the administration of justice.
(3) Before refusing assent to any Bill, the Governor shall explain to the
members of the Legislative Assembly why he or she proposes to do so, if
necessary in confidence, and shall allow those members the opportunity to submit
their views on the matter in writing to a Secretary of State.
Return of Bills by the Governor
79. (1) Where the Governor decides to return any Bill to the Legislative
Assembly when it is presented for his or her assent, he or she shall do so within
60 days of receiving it, transmitting with it any amendments which he or she may
recommend and the reasons for them, and the Assembly shall consider such
recommendation.
(2) The Governor shall inform the Speaker as soon as practicable that he
or she intends to return a Bill in pursuance of subsection (1).
Disallowance of laws
80. (1) Any law assented to by the Governor may be disallowed by Her
Majesty through a Secretary of State; but no law shall be disallowed until the
expiration of a reasonable period notified by a Secretary of State to the Governor
with an explanation of the difficulties perceived by the Secretary of State, and the
Governor shall forthwith advise the Speaker of that period and those difficulties
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in order to give the Legislative Assembly an opportunity to reconsider the law in
question.
(2) Whenever any law has been disallowed by Her Majesty the Governor
shall cause notice of such disallowance to be published by Government Notice
and the law shall be annulled with effect from the date of such publication.
(3) Section 16(1) of the Interpretation Act 1978(4) shall apply to the
annulment of any law under this section as it applies to the repeal of an Act of
Parliament, save that any enactment repealed or amended by or in pursuance of
that law shall have effect as from the date of the annulment as if that law had not
been made.
Governor’s reserved power
81. If the Governor considers that the enactment of legislation is necessary or
desirable with respect to or in the interests of any matter for which he or she is
responsible under section 55 but, after consultation with the Premier, it appears to
the Governor that the Cabinet is unwilling to support the introduction into the
Legislative Assembly of a Bill for the purpose or that the Assembly is unlikely to
pass a Bill introduced into it for the purpose, the Governor may, with the prior
approval of a Secretary of State, cause a Bill for the purpose to be published in a
Government Notice and may (notwithstanding that the Bill has not been passed
by the Assembly) assent to it on behalf of Her Majesty; but the Bill shall be so
published for at least 21 days prior to assent unless the Governor certifies by
writing under his or her hand that the matter is too urgent to permit such delay in
the giving of assent and so informs a Secretary of State.
Privileges of the Legislative Assembly and its members
82. A law made under this Constitution may determine and regulate the
privileges, immunities and powers of the Legislative Assembly and its members,
but no such privileges, immunities or powers shall exceed those of the House of
Commons of the United Kingdom or of its members.
Sessions of the Legislative Assembly
83. (1) Subject to this Constitution, the sessions of the Legislative Assembly
shall be held at such places and begin at such times as the Governor may from
time to time by proclamation appoint.
(2) There shall be at least one session of the Legislative Assembly in
every calendar year.
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Prorogation and dissolution
84. (1) The Governor, acting after consultation with the Premier, and by
proclamation, may prorogue the Legislative Assembly, and shall do so annually.
(2) The Governor, acting after consultation with the Premier, may at any
time, by proclamation, dissolve the Legislative Assembly.
(3) The Governor shall dissolve the Legislative Assembly at the expiration
of four years from the date when the Assembly first meets after any general
election unless it has been sooner dissolved pursuant to this Constitution.
Recalling dissolved Legislative Assembly
85. If, between a dissolution of the Legislative Assembly and the date on which
the next ensuing general election is held, a matter arises of a nature and urgency
which in the opinion of the Governor makes it necessary for the Assembly to be
recalled, the Governor may, acting after consultation with the Premier, summon
the Assembly that has been dissolved and that Assembly shall thereupon be
deemed (except for the purposes of section 86(1)) not to have been dissolved, but
shall be deemed (except as aforesaid) to be dissolved on the date on which the
next ensuing general election is held.
General elections and bye-elections
86. (1) A general election of members of the Legislative Assembly shall be
held at such time within two months after every dissolution of the Assembly as
the Governor shall appoint by proclamation published in a Government Notice.
(2) Whenever any person vacates his or her seat as a member of the
Legislative Assembly for any reason other than its dissolution, an election to fill
the vacancy shall be held within two months after the occurrence of the vacancy,
unless the Assembly is sooner dissolved or the date on which the Assembly must
be dissolved under section 84(3) is less than four months after the occurrence of
the vacancy.
Public Accounts Committee
87. (1) There shall be a Public Accounts Committee of the Legislative
Assembly with power and responsibility to examine the public accounts of the
Cayman Islands and the accounts and financial dealings of all authorities, offices
and departments of Government, of all courts, and of all Government-owned
companies.
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(2) The members of the Committee, and any person authorised by it to act
on its behalf, shall have access to all books, records, reports and other documents
relating to the accounts referred to in subsection (1).
(3) The Committee shall receive reports from the Auditor General as
provided in section 114(7).
(4) The Committee shall be re-elected as soon as practicable after the
Legislative Assembly first meets following a general election.
Electoral Boundary Commission
88. (1) An Electoral Boundary Commission shall be appointed from time to
time at such time as the Governor, acting after consultation with the Premier and
the Leader of the Opposition, may determine; but -
(a) the first such Commission shall be appointed as soon as
practicable after the date of commencement of this Constitution;
and
(b) each subsequent Commission shall be appointed not later than
eight years after the last Commission submitted its report under
section 89.
(2) An Electoral Boundary Commission shall consist of -
(a) a Chairman who shall be appointed by the Governor, acting in his
or her discretion;
(b) one member appointed by the Governor, acting in accordance
with the advice of the Premier; and
(c) one member appointed by the Governor, acting in accordance
with the advice of the Leader of the Opposition.
(3) A person shall not be qualified to be appointed as the Chairman of an
Electoral Boundary Commission if he or she is a member of the Legislative
Assembly or a public officer.
(4) The Chairman of an Electoral Boundary Commission shall vacate his
or her office -
(a) on the day following the date of submission under section 89 of
the report of the Commission;
(b) if he or she becomes a member of the Legislative Assembly or a
public officer; or
(c) if the Governor, acting in his or her discretion, directs that he or
she shall be removed from office for inability to discharge the
functions of that office (whether arising from infirmity of body or
mind or any other cause) or for misbehaviour.
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(5) Any other member of an Electoral Boundary Commission shall vacate
his or her office -
(a) on the day following the date of submission under section 89 of
the report of the Commission; or
(b) if his or her appointment is revoked by the Governor, acting, in
the case of a member appointed under subsection (2)(b), in
accordance with the advice of the Premier or, in the case of a
member appointed under subsection (2)(c), in accordance with
the advice of the Leader of the Opposition.
(6) An Electoral Boundary Commission may regulate its own procedure
and, with the consent of the Governor, confer powers and impose duties on any
public officer or on any authority of the Government for the purpose of the
discharge of its functions.
(7) For the purpose of the discharge of its functions, an Electoral
Boundary Commission shall invite views from members of the public and may
seek such advice as it considers appropriate.
(8) An Electoral Boundary Commission may act notwithstanding any
vacancy in its membership (including any vacancy not filled when appointments
of members are first made) and its proceedings shall be valid even though some
person who was not entitled to do so took part in them, but any decision of the
Commission shall require the concurrence of not less than two members of the
Commission.
(9) In the exercise of its functions under this Constitution, an Electoral
Boundary Commission shall not be subject to the direction or control of any other
person or authority.
Review and alteration of electoral district boundaries
89. (1) An Electoral Boundary Commission shall, as soon as practicable after
its appointment, review the boundaries of the electoral districts into which the
Cayman Islands are divided and, taking into account the changes or proposed
changes, if any, in the number of electoral districts or of elected members of the
Legislative Assembly, shall submit a report to the Governor and the Legislative
Assembly containing its recommendations for any changes in the number and
boundaries of the electoral districts.
(2) In preparing its report under this section the Commission shall -
(a) take no account of the racial distribution of electors within the
Cayman Islands;
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(b) take into account the natural boundaries within the Cayman
Islands;
(c) have regard to existing electoral districts; and
(d) subject to the foregoing provisions of this subsection, ensure
that -
(i) so far as reasonably practicable, across all electoral districts
there will be an equal ratio between the number of elected
members of the Legislative Assembly representing each
electoral district and the number of persons qualified to be
registered as electors under section 90 in that district; but
(ii) Cayman Brac and Little Cayman shall (between these two
islands) at all times return at least two members to the
Legislative Assembly.
(3) As soon as may be after the Commission has submitted a report under
subsection (1), the Premier shall lay before the Legislative Assembly for its
approval the draft of an order by the Governor for giving effect, whether with or
without modifications, to the recommendations contained in the report, and that
draft may make provision for any matters which appear to the Premier to be
incidental to or consequential upon the other provisions of the draft.
(4) Where any draft order laid under this section would give effect to any
such recommendations with modifications, the Premier shall lay before the
Legislative Assembly together with the draft a statement of the reasons for the
modifications.
(5) If the motion for the approval of any draft order laid under this section
is rejected by the Legislative Assembly or is withdrawn by leave of the
Assembly, an amended draft shall be laid without undue delay by the Premier
before the Assembly.
(6) If any draft order laid under this section is approved by resolution of
the Legislative Assembly, the Premier shall submit it to the Governor who shall
make an order (which shall be published in a Government Notice) in terms of the
draft; and that order shall come into force for the determination of the boundaries
of the electoral districts to which it relates upon the next dissolution of the
Assembly after it is made.
(7) The question of the validity of any order by the Governor purporting to
be made under this section and reciting that a draft of the order has been
approved by the Legislative Assembly shall not be inquired into in any court.
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Qualifications of electors
90. (1) Subject to section 91, a person shall be entitled to be registered as an
elector in one electoral district only, but he or she shall not be entitled to be
registered as an elector for elections to the Legislative Assembly unless -
(a) he or she was, on the day immediately preceding the date of
commencement of this Constitution, entitled to be registered as
an elector; or
(b) he or she -
(i) is a Caymanian; and
(ii) has attained the age of eighteen years; and
(iii) is resident in the Cayman Islands at the date of registration;
and
(iv) has been resident in the Cayman Islands for a period or
periods amounting to not less than two years out of the four
years immediately preceding the date of registration; or
(c) on the day of the issue of a writ ordering an election, he or she is
otherwise qualified under paragraph (b) but has not attained the
age of eighteen years, but he or she will attain that age on or
before the polling day at the election.
(2) Any period of absence for any of the purposes specified in section
61(3) shall be disregarded in determining whether a person is or has been resident
in the Cayman Islands for the purposes of this section.
Disqualifications of electors
91. (1) A person shall not be entitled to be registered as an elector in any
electoral district who -
(a) subject to subsection (2), is serving a sentence of imprisonment
(by whatever name called) exceeding twelve months imposed on
him or her by a court in any country or substituted by competent
authority for some other sentence imposed on him or her by such
a court, or is under such a sentence of imprisonment the
execution of which has been suspended;
(b) is a person certified to be insane or otherwise adjudged to be of
unsound mind under any law in force in the Cayman Islands; or
(c) is disqualified for registration as an elector by any law in force in
the Cayman Islands relating to offences connected with elections.
(2) For the purposes of subsection (1)(a) -
(a) where a person is serving two or more sentences of imprisonment
that are required to be served consecutively he or she shall,
throughout the whole time during which he or she so serves, be
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regarded as serving a sentence exceeding twelve months if (but
not unless) any one of those sentences exceeds that term;
(b) no account shall be taken of a sentence of imprisonment imposed
as an alternative to or in default of the payment of a fine; and
(c) no account shall be taken of a sentence of imprisonment imposed
by a court outside the Cayman Islands other than a sentence on
conviction of an offence constituted by conduct which, if it
occurred within the Cayman Islands, would constitute an offence
punishable under the law of the Cayman Islands by imprisonment
of twelve months or any greater punishment.
Right to vote at elections
92. (1) Any person who is registered as an elector in an electoral district shall,
while so registered, be entitled to vote at any election in that district for an elected
member of the Legislative Assembly, unless he or she is prohibited from so
voting by any law in force in the Cayman Islands -
(a) because he or she is a returning officer; or
(b) because he or she has been concerned in any offence connected
with elections.
(2) No person shall vote at any election in any electoral district who -
(a) is not registered as an elector in that district;
(b) has voted in another electoral district at the same election; or
(c) is for any reason unable to attend to vote in person (except so far
as it may be provided by law that such persons may vote).
Law as to elections
93. Subject to this Constitution, a law enacted by the Legislature may provide
for the election of members of the Legislative Assembly, including (without
prejudice to the generality of the foregoing power) the following matters -
(a) the registration of electors;
(b) the ascertainment of the qualifications of electors and of
candidates for election;
(c) the division of the Cayman Islands into electoral districts for the
purpose of elections;
(d) the holding of elections;
(e) the determination of any question whether any person has been
validly elected as a member of the Assembly or whether the seat
of any elected member in the Assembly has become vacant;
(f) the definition and trial of offences connected with elections and
the imposition of penalties for them, including the
disqualification for membership of the Assembly, or for
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registration as an elector, or for voting at elections, of any person
concerned in any such offence; and
(g) the disqualification for election as members of the Assembly of
persons holding or acting in any office the functions of which
involve any responsibility for, or in connection with, the conduct
of any election or the compilation or revision of any electoral
register.
PART V
THE JUDICATURE
The Grand Court
Constitution and jurisdiction of the Grand Court
94. (1) There shall be a Grand Court for the Cayman Islands which shall be a
superior Court of Record and shall have such jurisdiction and powers as may be
conferred on it by this Constitution and any other law.
(2) The Court shall have and use a seal bearing the style of the Court and a
device approved by the Chief Justice.
Composition of the Grand Court
95. (1) The judges of the Grand Court shall be a Chief Justice and such
number of other judges (if any) as may be prescribed by a law made under this
Constitution; but the office of a judge shall not, without his or her consent, be
abolished during his or her continuance in office.
(2) The judges of the Grand Court shall be persons holding such
qualifications for appointment as a judge of the Grand Court as may be
prescribed by a law enacted by the Legislature; but a person who has been
appointed as a judge of the Grand Court may continue in office notwithstanding
any subsequent variation in the qualifications so prescribed.
(3) All the judges of the Grand Court, including the Chief Justice, shall be
appointed by the Governor by instrument under the public seal in accordance
with section 106.
(4) It shall be lawful for a person qualified for appointment as a judge of
the Grand Court to be so appointed (regardless of his or her age) for such term as
may be specified in the instrument of appointment, and section 96 shall have
effect in relation to any person so appointed as if he or she would attain the
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retiring age applicable to that office on the day on which the specified term
expires.
(5) The emoluments and allowances of a judge of the Grand Court shall be
prescribed by law and shall be charged on the revenues of the Cayman Islands,
and the emoluments and allowances of a judge shall not, without his or her
consent, be reduced during his or her continuance in office.
(6) The Chief Justice shall be the head of the judiciary of the Cayman
Islands.
(7) The Chief Justice shall have responsibility for and management of all
matters arising in judicature, including responsibility -
(a) for representing the views of the judiciary to the Government and
the Legislative Assembly, including, where appropriate, through
the Attorney General;
(b) for the maintenance of appropriate arrangements for the welfare,
training and guidance of the judiciary within available resources;
(c) subject to paragraph (d), for the maintenance of appropriate
arrangements for the deployment of the judiciary and the
allocation of work within courts;
(d) after consultation with the President of the Court of Appeal who
shall be responsible for the allocation of work within the Court of
Appeal, for the maintenance of appropriate arrangements for the
work of that court.
Tenure of office of judges of the Grand Court
96. (1) Subject to this section and section 95(4), a judge of the Grand Court
shall vacate his or her office when he or she attains the age of 65 years; but -
(a) the Governor may permit a judge who attains the age of 65 years
to continue in office until he or she has attained such later age,
not exceeding the age of 70 years, as may have been agreed
between that judge and the Governor following the
recommendation of the Judicial and Legal Services Commission;
(b) a judge who has attained the age at which he or she would
otherwise vacate office under this subsection may continue in
office for such period as may be necessary to enable him or her
to deliver judgment or to do any other thing in relation to any
proceeding commenced before him or her before he or she
attained that age.
(2) A judge of the Grand Court may be removed from office only for
inability to discharge the functions of his or her office (whether arising from
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infirmity of body or mind or any other cause) or for misbehaviour, and shall not
be so removed except in accordance with subsection (3).
(3) A judge of the Grand Court shall be removed from office by the
Governor by instrument under the public seal if the question of the removal of
that judge from office has, at the request of the Governor made in pursuance of
subsection (4), been referred by Her Majesty to the Judicial Committee of Her
Majesty’s Privy Council under section 4 of the Judicial Committee Act 1833(5)
or any other enactment enabling Her Majesty in that behalf, and the Judicial
Committee has advised Her Majesty that the judge ought to be removed from
office for inability as aforesaid or misbehaviour.
(4) If the Governor considers that the question of removing a judge of the
Grand Court from office for inability as aforesaid or misbehaviour ought to be
investigated, then -
(a) the Governor shall refer the matter to the Judicial and Legal
Services Commission;
(b) the Judicial and Legal Services Commission shall inquire into the
matter and report on the facts of it to the Governor and advise the
Governor whether he or she should request that the question of
the removal of that judge should be referred by Her Majesty to
the Judicial Committee; and
(c) if the Judicial and Legal Services Commission so advises, the
Governor shall request that the question should be referred
accordingly.
(5) The Commissions of Inquiry Law as in force on the date of
commencement of this Constitution shall, subject to this section, apply as nearly
as may be in relation to the Judicial and Legal Services Commission conducting
inquiries under subsection (4) or, as the context may require, to the members of
that Commission as it applies in relation to Commissions or Commissioners
appointed under that Law.
(6) If the question of removing a judge of the Grand Court from office has
been referred to the Judicial and Legal Services Commission under subsection
(4), the Governor may suspend the judge from performing the functions of his or
her office, and any such suspension may at any time be revoked by the Governor,
and shall in any case cease to have effect -
(a) if the Judicial and Legal Services Commission advises the
Governor that he or she should not request that the question of
the removal of the judge be referred by Her Majesty to the
Judicial Committee; or
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(b) if the Judicial Committee advises Her Majesty that the judge
ought not to be removed from office.
(7) The powers conferred on the Governor by this section shall be
exercised by the Governor acting in his or her discretion.
Acting judges of the Grand Court
97. (1) If the office of Chief Justice is vacant, or if the holder of it is for any
reason unable to perform the functions of that office, then, until some other
person has been appointed to, and has assumed the functions of, that office, or
until the holder of that office has resumed those functions, as the case may be,
such one of the other judges of the Grand Court or such other person qualified for
appointment as a judge of the Grand Court as the Governor, acting in accordance
with section 106, may appoint for that purpose shall act in that office.
(2) If the office of a judge of the Grand Court other than the Chief Justice
is vacant, or if any such judge is acting as Chief Justice or is for any reason
unable to perform the functions of his or her office, the Governor, acting in
accordance with section 106, may appoint a person qualified for appointment as a
judge of the Grand Court to act as such a judge.
(3) A person may be appointed under subsection (1) or (2) even though he
or she has attained the age of 65 years.
(4) Any person appointed under this section to act as a judge of the Grand
Court shall, unless he or she is removed from office under section 96, continue so
to act for the period of his or her appointment or, if no such period is specified,
until his or her appointment is revoked by the Governor, acting in his or her
discretion; but a person whose appointment so to act has expired or been revoked
may, with the permission of the Governor, acting in his or her discretion,
continue so to act for such period as may be necessary to enable him or her to
deliver judgment or to do any other thing in relation to any proceeding previously
commenced before him or her.
Oaths to be taken by judges of the Grand Court
98. Before assuming the functions of his or her office, every judge of the Grand
Court shall make and subscribe before the Governor, or some other person
authorised for that purpose by the Governor, acting in his or her discretion, oaths
of allegiance and for the due execution of judicial office in the forms set out in
the Schedule to this Constitution.
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The Court of Appeal
Constitution and jurisdiction of the Court of Appeal
99. (1) There shall be a Court of Appeal for the Cayman Islands which shall
be a superior Court of Record and shall have jurisdiction and powers to hear and
determine such appeals from the Grand Court as may be prescribed by this
Constitution or any other law.
(2) The Court of Appeal shall, subject to this Constitution and any other
law, have all the powers and jurisdiction that are possessed by the Grand Court
under any law in force in the Cayman Islands; and decisions of the Court of
Appeal in respect of any appeal from the Grand Court shall, subject as aforesaid,
be enforced in the Cayman Islands in the same way as decisions of that Court.
(3) Subsection (1) shall not apply to appeals relating to any matter in
respect of which this Constitution or any other law provides that the decision of
the Grand Court is to be final.
(4) The Court of Appeal shall have and use a seal bearing the style of the
Court and a device approved by the President.
Composition of the Court of Appeal
100. (1) The judges of the Court of Appeal shall be a President and not less
than two Justices of Appeal.
(2) The judges of the Court of Appeal shall be appointed by the Governor
by instrument under the public seal in accordance with section 106; but the office
of a judge shall not, without his or her consent, be abolished during his or her
continuance in office.
(3) A person shall be qualified to be appointed as a judge of the Court of
Appeal if, and shall not be qualified to be so appointed unless, he or she holds or
has held high judicial office.
(4) A judge of the Grand Court may exercise any of the powers of a single
judge of the Court of Appeal to such extent as a law enacted by the Legislature
may prescribe.
Tenure of office of judges of the Court of Appeal
101. (1) The judges of the Court of Appeal shall be appointed for such period
as may be specified in their respective instruments of appointment; but a person
whose appointment as a judge of the Court of Appeal has expired may, with the
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permission of the Governor, acting in his or her discretion, continue in office for
such period as may be necessary to enable him or her to deliver judgment or to do
any other thing in relation to any proceeding previously commenced before him
or her.
(2) A judge of the Court of Appeal may be removed from office only for
inability to discharge the functions of his or her office (whether arising from
infirmity of body or mind or any other cause) or for misbehaviour, and shall not
be so removed except in accordance with subsection (3).
(3) A judge of the Court of Appeal shall be removed from office by the
Governor by instrument under the public seal if the question of the removal of
that judge from office has, at the request of the Governor made in pursuance of
subsection (4), been referred by Her Majesty to the Judicial Committee of Her
Majesty’s Privy Council under section 4 of the Judicial Committee Act 1833 or
any other enactment enabling Her Majesty in that behalf, and the Judicial
Committee has advised Her Majesty that the judge ought to be removed from
office for inability as aforesaid or misbehaviour.
(4) If the Governor considers that the question of removing a judge of the
Court of Appeal from office for inability as aforesaid or misbehaviour ought to be
investigated, then -
(a) the Governor shall refer the matter to the Judicial and Legal
Services Commission;
(b) the Judicial and Legal Services Commission shall inquire into the
matter and report on the facts of it to the Governor and advise the
Governor whether he or she should request that the question of
the removal of that judge should be referred by Her Majesty to
the Judicial Committee; and
(c) if the Judicial and Legal Services Commission so advises, the
Governor shall request that the question should be referred
accordingly.
(5) The Commissions of Inquiry Law as in force on the date of
commencement of this Constitution shall, subject to this section, apply as nearly
as may be in relation to the Judicial and Legal Services Commission conducting
inquiries under subsection (4) or, as the context may require, to the members of
that Commission as it applies to Commissions or Commissioners appointed under
that Law.
(6) If the question of removing a judge of the Court of Appeal from office
has been referred to the Judicial and Legal Services Commission under
subsection (4), the Governor may suspend the judge from performing the
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functions of his or her office, and any such suspension may at any time be
revoked by the Governor, and shall in any case cease to have effect -
(a) if the Judicial and Legal Services Commission advises the
Governor that he or she should not request that the question of
the removal of the judge from office should be referred by Her
Majesty to the Judicial Committee; or
(b) if the Judicial Committee advises Her Majesty that the judge
ought not to be removed from office.
(7) The powers conferred on the Governor by this section shall be
exercised by the Governor acting in his or her discretion.
Acting judges of the Court of Appeal
102. (1) If the office of the President of the Court of Appeal is vacant, or if the
holder of it is for any reason unable to perform the functions of that office, then,
until some other person has been appointed to, and has assumed the functions of,
that office or until the holder of it has resumed those functions, as the case may
be, such one of the Justices of Appeal or such other person qualified for
appointment as a judge of the Court of Appeal as the Governor, acting in
accordance with section 106, may appoint for that purpose shall act in the office
of the President.
(2) If the office of a Justice of Appeal is vacant, or if any Justice of
Appeal is acting as the President or is for any reason unable to perform the
functions of his or her office, the Governor, acting in accordance with section
106, may appoint a person qualified for appointment as a judge of the Court of
Appeal to act as a Justice of Appeal.
(3) Any person appointed under this section to act as a Justice of Appeal
shall, unless he or she is removed from office under section 101, continue so to
act for the period of his or her appointment or, if no such period is specified, until
his or her appointment is revoked by the Governor, acting in his or her discretion;
but a person whose appointment so to act has expired or been revoked may, with
the permission of the Governor, acting in his or her discretion, continue so to act
for such period as may be necessary to enable him or her to deliver judgment or
to do any other thing in relation to any proceeding previously commenced before
him or her.
Oaths to be taken by judges of the Court of Appeal
103. Before assuming the functions of his or her office every judge of the Court
of Appeal shall make and subscribe before the Governor, or some other person
authorised for that purpose by the Governor, acting in his or her discretion, oaths
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of allegiance and for the due execution of judicial office in the forms set out in
the Schedule to this Constitution.
Other matters
Subordinate courts
104. (1) A law enacted by the Legislature may establish courts subordinate to
the Grand Court.
(2) The Grand Court shall have jurisdiction to supervise the proceedings
before any subordinate court and may make such orders, issue such process and
give such directions as it may consider appropriate for the purpose of ensuring
that justice is duly administered by any such courts.
Judicial and Legal Services Commission
105. (1) There shall be in and for the Cayman Islands a Judicial and Legal
Services Commission which shall consist of -
(a) a Chairman and one other member, neither of whom shall be a
lawyer, appointed by the Governor, acting after consultation with
the Premier and the Leader of the Opposition;
(b) the President of the Court of Appeal, ex officio;
(c) a person appointed by the Governor, acting in his or her
discretion, who holds or has held high judicial office in the
Cayman Islands and has recent personal knowledge of the courts
in the Cayman Islands;
(d) two persons appointed by the Governor, acting in his or her
discretion, who hold or have held high judicial office in a
Commonwealth country or Ireland, but do not currently hold
such office in the Cayman Islands; and
(e) two attorneys-at-law qualified to practise in the Cayman Islands,
one with experience in Government service and one with
experience in private practice, appointed by the Governor, acting
after consultation with representatives of legal professional
organisations in the Cayman Islands and, where appropriate, the
Attorney General.
(2) No person shall be qualified to be appointed to the Judicial and Legal
Services Commission if he or she is a member of, or a candidate for election to,
the Legislative Assembly or (except for appointment under subsection (1)(e))
holds or is acting in any public office.
(3) The office of a member of the Judicial and Legal Services Commission
shall become vacant -
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(a) at the expiration of five years from the date of his or her
appointment or such earlier time as may be specified in the
instrument by which he or she was appointed;
(b) if he or she resigns office by writing under his or her hand
addressed to the Governor;
(c) if he or she becomes a member of, or a candidate for election to,
the Legislative Assembly, or (except for a member appointed
under subsection (1)(e)) is appointed to or to act in any public
office; or
(d) if the Governor, acting in his or her discretion, directs that he or
she shall be removed from office for inability to discharge the
functions of that office (whether arising from infirmity of body or
mind or any other cause) or for misbehaviour.
(4) If the office of a member of the Judicial and Legal Services
Commission becomes vacant or if such a member is for any reason unable to
perform the functions of that office, the Governor, acting in accordance with
subsection (1) for the appointment of that member, may appoint another suitably
qualified person to that office for the unexpired term of the previous holder of the
office or until the holder of the office is able to resume his or her functions.
(5) Any decision of the Judicial and Legal Services Commission shall
require the concurrence of not less than five members of the Commission, and the
Commission shall take its decisions in such form and manner as it may
determine; but any decision relating to the appointment of the President of the
Court of Appeal or the Chief Justice shall require the concurrence of at least two
members of the Commission who have judicial experience.
(6) In the exercise of their functions, the Judicial and Legal Services
Commission and its members shall not be subject to the direction or control of
any other person or authority.
(7) The Judicial and Legal Services Commission may regulate its own
procedure, which may include meeting by teleconference or other electronic
means of communication.
Functions of Judicial and Legal Services Commission
106. (1) Power to make appointments to the offices to which this section
applies, and to remove and to exercise disciplinary control over persons holding
or acting in such offices, shall vest in the Governor, acting in accordance with the
advice of the Judicial and Legal Services Commission; but the Governor, acting
in his or her discretion, may act otherwise than in accordance with that advice if
he or she determines that compliance with that advice would prejudice Her
Majesty’s service.
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(2) Before exercising the powers vested in the Governor by subsection (1)
the Governor may, acting in his or her discretion, once refer the advice of the
Judicial and Legal Services Commission back to the Commission for
reconsideration by it.
(3) If the Judicial and Legal Services Commission, having reconsidered its
original advice under subsection (2), substitutes for it different advice, subsection
(2) shall apply to that different advice as it applies to the original advice.
(4) This section applies to the offices of -
(a) Chief Justice and other judge of the Grand Court;
(b) President of the Court of Appeal and other judge of the Court of
Appeal;
(c) Attorney General;
(d) Director of Public Prosecutions;
(e) Magistrate;
(f) such other offices in the public service, for appointment to which
persons are required to possess legal qualifications, as may be
prescribed by any law enacted by the Legislature.
(5) No member of the Judicial and Legal Services Commission shall
participate in any proceedings of the Commission which affect him or her
personally.
(6) In cases where the Judicial and Legal Services Commission conducts
an inquiry under section 96(4) or 101(4), the President of the Court of Appeal and
any current judge of the Grand Court who is a member of the Commission shall
not participate in that inquiry other than as a witness.
(7) A person holding the office of Attorney General, Director of Public
Prosecutions or Magistrate may only be removed from office for inability to
discharge the functions of his or her office (whether arising from infirmity of
body or mind or any other cause) or for misbehaviour.
(8) Where the issue of the removal from office of any person holding one
of the offices mentioned in subsection (4)(c), (d), (e) or (f) has been referred to
the Judicial and Legal Services Commission, the Governor may, acting after
consultation with the Commission, suspend that person from performing the
functions of his or her office pending the outcome of the referral.
(9) Any suspension, removal or disciplinary action taken under this
section shall be carried out in accordance with the highest appropriate standards
of procedural fairness.
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(10) The Judicial and Legal Services Commission shall -
(a) draw up a code of conduct for the judiciary and a procedure for
dealing with complaints; and
(b) have such other functions as may be conferred on it by a law
enacted by the Legislature.
(11) Subject to subsection (6), this section is without prejudice to sections
96 and 101.
Judicial administration
107. The Legislature and the Cabinet shall uphold the rule of law and judicial
independence, and shall ensure that adequate funds are provided to support the
judicial administration in the Cayman Islands.
PART VI
THE PUBLIC SERVICE
Overriding duty of public officers
108. Subject to this Constitution, all public officers must -
(a) act in accordance with the best interests of the Cayman Islands
and not in their own private interests; and
(b) implement Government policy to the best of their ability and in
accordance with the directions given to them by the Cabinet or
other responsible person or authority.
Appointment, etc., of public officers
109. (1) Power to make appointments to public offices, and to transfer, remove
or exercise disciplinary control over persons holding or acting in such offices, is,
subject to this Constitution, vested in the Governor acting in his or her discretion.
(2) Subject to subsections (3) and (4), the Governor, acting in his or her
discretion, may by regulations delegate, to such extent and subject to such
conditions as may be specified in the regulations, the powers vested in him or her
by subsection (1) to such public officers as may be specified.
(3) Subject to subsection (4), a law enacted by the Legislature may
provide for the powers vested in the Governor by subsection (1) to be exercised
by public officers subordinate to the Governor, and may enable the Governor to
delegate those powers to such public officers in his or her discretion.
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(4) No regulations made under subsection (2) shall delegate any powers
vested in the Governor in relation to the offices of Financial Secretary,
Commissioner of Police, Auditor General, Information Commissioner,
Complaints Commissioner or to any office to which section 106 applies, and no
law enacted by the Legislature may provide for any person or authority other than
the Governor to exercise those powers.
Applicability of pensions law
110. (1) The law applicable to the grant and payment to any officer, or to his or
her widow or widower, children, dependants or personal representatives, of any
pension, gratuity or other like allowance (in this section referred to as “an
award”) in respect of the service of that officer in a public office shall be that in
force on the relevant day or any later law not less favourable to the person
concerned.
(2) For the purposes of this section the relevant day is -
(a) in relation to an award granted before the appointed day, the day
on which the award was granted;
(b) in relation to an award granted or to be granted on or after the
appointed day to or in respect of a person who was a public
officer before that day, the day immediately before that day;
(c) in relation to an award granted or to be granted to or in respect of
a person who first becomes a public officer on or after the
appointed day, the day on which he or she becomes a public
officer.
(3) In subsection (2) “the appointed day” means the date of
commencement of this Constitution.
(4) For the purposes of this section, insofar as the law applicable to an
award depends on the option of the person to or in respect of whom it is granted
or to be granted, the law for which he or she opts shall be taken to be more
favourable to him or her than any other law for which he or she might have opted.
(5) Where any sum is required for the payment of an award and no, or
insufficient, provision has been made for it under a law made by the Legislature,
that sum shall be charged on and paid out of the revenues of the Cayman Islands.
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PART VII
FINANCE
Revenue and Expenditure
111. (1) The Legislature shall have the authority to levy or change the rates of
revenue unless otherwise provided by law.
(2) All Government expenses, assets and the incurrence of liabilities shall
require appropriation by the Legislature, unless otherwise provided by law.
(3) A law enacted by the Legislature shall govern the operation of the
Government’s financial system and processes.
Reporting
112. (1) At least one report annually shall be made to the Legislative Assembly
on the Government’s financial performance and fiscal position.
(2) The content, timing and process for financial reporting and the
agencies that are to report to the Legislative Assembly shall be prescribed by law.
Public debt
113. (1) Total Government borrowing shall not exceed an amount for which the
sum of -
(a) total interest payments;
(b) total other debt servicing expenses, including arrangement fees
and sinking fund expenses; and
(c) total principal or amortised debt repayments,
for a financial year is more than a percentage of Government revenue set out in
law and agreed with a Secretary of State (calculated using generally accepted
accounting practice) for that financial year.
(2) Subject to this Constitution, a law enacted by the Legislature may
provide for a higher percentage for a limited period where a matter arises of a
nature or urgency which in the opinion of the Cabinet makes it necessary to do
so.
(3) For the purposes of this section, “Government borrowing” means
borrowing in the name of the Government regardless of whether repayments are
made directly by the Government or by a public or governmental body (including
any statutory body, company or association).
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Auditor General
114. (1) There shall be an Auditor General whose office shall be a public
office, and power to make appointments to the office of Auditor General, and to
remove or exercise disciplinary control over any person holding or acting in that
office, is vested in the Governor, acting in his or her discretion.
(2) The Auditor General may be removed from office only for inability to
discharge the functions of his or her office (whether arising from infirmity of
body or mind or any other cause) or for misbehaviour.
(3) The Auditor General shall have the power and responsibility to audit
the public accounts of the Cayman Islands and the accounts and financial
dealings of all authorities, offices and departments of Government and of all
courts, and the power to undertake value for money investigations in respect of
the activities of such authorities, offices and departments.
(4) The Auditor General, and any person authorised by him or her to act
on his or her behalf, shall have access to all books, records, reports and other
documents relating to the accounts referred to in subsection (3).
(5) The functions of the Auditor General and the accountability of that
post and the Audit Office shall be further prescribed by law.
(6) In the exercise of his or her functions, the Auditor General (and any
person acting on his or her behalf in the exercise of those functions) shall not be
subject to the direction or control of any other person or authority, save that the
Auditor General is answerable to the Public Accounts Committee of the
Legislative Assembly and must attend upon the Committee at its request.
(7) The Auditor General shall submit reports on his or her activities to the
Public Accounts Committee of the Legislative Assembly at least twice every year
and as requested by the Committee.
Financial Secretary
115. There shall be a Financial Secretary who shall be the principal adviser to the
Minister responsible for finance, and whose office shall be a public office.
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PART VIII
INSTITUTIONS SUPPORTING DEMOCRACY
Human Rights Commission
116. (1) There shall be in and for the Cayman Islands a Human Rights
Commission (referred to in this section as “the Commission”).
(2) The Commission’s primary responsibility shall be promoting
understanding and observance of human rights in the Cayman Islands.
(3) The Commission shall consist of a Chairman and four other members
appointed by the Governor, acting after consultation with the Premier and the
Leader of the Opposition, at least two of whom shall be experienced lawyers.
(4) In the exercise of their functions, the Commission and its members
shall not be subject to the direction or control of any other person or authority.
(5) The Commission shall replace the Human Rights Committee.
(6) The Commission shall have power to -
(a) receive and investigate complaints of breaches or infringements
of any right or freedom contained in the Bill of Rights or
international human rights treaties that have been extended to the
Cayman Islands, and investigate such possible breaches or
infringements on its own initiative;
(b) provide advice to persons who consider that their rights or
freedoms have been infringed;
(c) provide a forum for dealing with complaints by mediation or
conciliation or by making recommendations;
(d) issue guidance on procedures for dealing with any complaints of
breaches or infringements of rights and freedoms;
(e) contribute to public education about human rights;
(f) issue reports relating to human rights issues on its own initiative;
(g) undertake such other functions, for the purpose of fulfilling its
primary responsibility under subsection (2), as may be conferred
on it by a law enacted by the Legislature.
(7) The Commission shall have no power to -
(a) represent or provide representation to parties to litigation;
(b) act in a judicial capacity or make binding determinations as to
whether any right or freedom contained in the Bill of Rights or
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any international human rights treaty or instrument has been
breached;
(c) compel any person to do anything against his or her will;
but any public official to which the Commission addresses a recommendation
must respond in writing within a reasonable time, and such responses shall be
published by the Commission unless there is a good reason to withhold
publication.
(8) The Commission shall make an annual report to the Legislative
Assembly about its activities.
(9) Further provision relating to the establishment and operation of the
Commission may be made by the Legislature, but such legislation shall not
derogate from any provision of this section.
(10) Nothing contained in or done pursuant to this section or any law made
under subsection (9) shall -
(a) oblige a person to refer any complaint of a breach or
infringement of any right or freedom referred to in the Bill of
Rights to the Commission; or
(b) prevent a person from seeking redress directly from the Grand
Court in relation to any breach or infringement of a right or
freedom referred to in the Bill of Rights, and the fact that such
person had previously sought the assistance of the Commission
with respect to such breach or infringement shall not prejudice
any legal action.
Commission for Standards in Public Life
117. (1) There shall be in and for the Cayman Islands a Commission for
Standards in Public Life (referred to in this section as “the Commission”).
(2) The Commission shall consist of a Chairman and not less than two nor
more than four other members, who shall be appointed by the Governor, acting
after consultation with the Premier and the Leader of the Opposition, and who
shall be people of the highest integrity with knowledge of practice in the private
or public sector.
(3) At least one member of the Commission shall be a chartered or
certified accountant of at least ten years’ experience.
(4) At least one member of the Commission shall be a legal practitioner
who has practised in the Commonwealth for at least ten years.
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(5) A person shall not be appointed as a member of the Commission if -
(a) he or she is a member of the Legislative Assembly;
(b) he or she holds, or has at any time during the preceding three
years held, a public office;
(c) he or she has at any time during the preceding five years held
office in a political party; or
(d) he or she is not a Caymanian.
(6) The office of a member of the Commission shall become vacant -
(a) at the expiration of four years from the date of his or her
appointment;
(b) if the member is absent from three consecutive meetings of the
Commission, unless the absence is approved by the Governor;
(c) if the member resigns office by writing under his or her hand
addressed to the Governor;
(d) if the member is removed from office by the Governor for
inability to discharge the functions of his or her office (whether
arising from infirmity of body or mind or any other cause) or for
misbehaviour; or
(e) if the member with his or her consent is nominated for election to
the Legislative Assembly or is appointed to any public office.
(7) If the office of a member of the Commission is vacant or a member is
for any reason unable to perform the functions of his or her office, the Governor,
acting in accordance with subsection (2), may appoint a person who is qualified
for appointment as a member of the Commission to act as a member of the
Commission, and any person so appointed shall, subject to subsection (6),
continue so to act until the expiration of his or her term of office.
(8) In the exercise of their functions, the Commission and its members
shall not be subject to the direction or control of any other person or authority.
(9) The functions of the Commission shall be -
(a) to assist in the setting of the highest standards of integrity and
competence in public life in order to ensure the prevention of
corruption or conflicts of interest;
(b) to monitor standards of ethical conduct in the Legislative
Assembly, the Cabinet, and on the part of public authorities and
public officers;
(c) to supervise the operation of registers of interest and to
investigate breaches of established standards;
(d) to review and establish procedures for awarding public contracts;
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(e) to review and establish procedures for appointing members to
public authorities, and the terms of their appointment;
(f) to recommend codes of conduct to prevent any Minister, public
authority or public officer employing their power for any
personal benefit or advantage, and to recommend legislation to
provide appropriate sanctions;
(g) to report to the Legislative Assembly at regular intervals, and at
least every six months; and
(h) to exercise such other functions as may be prescribed by a law
enacted by the Legislature.
Constitutional Commission
118. (1) There shall be in and for the Cayman Islands a Constitutional
Commission.
(2) The Constitutional Commission shall consist of a Chairman and two
other members appointed by the Governor, acting after consultation with the
Premier and the Leader of the Opposition, at least one of whom shall be an
experienced lawyer.
(3) The functions of the Constitutional Commission shall be -
(a) to advise the Government on questions concerning constitutional
status and development in the Cayman Islands;
(b) to publish reports, discussion papers, information papers and
other documents on constitutional matters affecting the Cayman
Islands;
(c) to promote understanding and awareness of this Constitution and
its values; and
(d) to exercise such other functions as may be prescribed by a law
enacted by the Legislature.
(4) In the exercise of their functions, the Constitutional Commission and
its members shall not be subject to the direction or control of any other person or
authority.
(5) Subject to this Constitution, further provision relating to the
establishment and operation of the Constitutional Commission may be made by
the Legislature.
Advisory District Councils
119. Subject to this Constitution, a law enacted by the Legislature shall provide
for the establishment, functions and jurisdiction of Councils for each electoral
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district to operate as advisory bodies to the elected members of the Legislative
Assembly.
Complaints Commissioner
120. (1) Subject to this Constitution, a law enacted by the Legislature may
make provision for the office, functions and jurisdiction of a Complaints
Commissioner, otherwise called an Ombudsman.
(2) The Complaints Commissioner shall be appointed by the Governor,
acting after consultation with the Premier and the Leader of the Opposition, by
instrument under the public seal.
(3) No person shall be qualified to be appointed as Complaints
Commissioner if he or she is or has been within the preceding three years -
(a) an elected member of the Legislative Assembly; or
(b) the holder of any office in any political party.
(4) The office of the Complaints Commissioner shall become vacant -
(a) at the expiration of the period specified in the instrument by
which he or she was appointed;
(b) if he or she resigns office by writing under his or her hand
addressed to the Governor;
(c) if he or she becomes an elected member of the Legislative
Assembly or the holder of any office in any political party; or
(d) if the Governor, acting in his or her discretion, directs that he or
she shall be removed from office for inability to discharge the
functions of the office (whether arising from infirmity of body or
mind or any other cause) or for misbehaviour, or for
contravention of subsection (5).
(5) Subject to such exceptions as the Governor, acting in his or her
discretion, may authorise by directions in writing, the Complaints Commissioner
shall not hold any other office of emolument either in the public service or
otherwise nor engage in any occupation for reward other than the duties of his or
her office.
(6) In the exercise of his or her functions, the Complaints Commissioner
shall not be subject to the direction or control of any other person or authority.
Register of Interests
121. (1) There shall be for the Cayman Islands a Register of Interests, which
shall be maintained by the Commission for Standards in Public Life.
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(2) It shall be the duty of any person to whom this section applies to
declare to the Commission for Standards in Public Life, for entry in the Register
of Interests, such interests, assets, income and liabilities of that person, or of any
other person connected with him or her, as may be prescribed by law.
(3) A person shall make a declaration under subsection (2) upon assuming
the functions of his or her office and at such intervals thereafter (being no longer
than twelve months) as may be prescribed by law.
(4) This section applies to all members of the Legislative Assembly and
the holders of such other offices (except that of the Governor) as may be
prescribed by law.
(5) A law enacted by the Legislature shall make provision for giving effect
to this section, including the sanctions which may be imposed for a failure to
comply with subsection (2) or (3) and, notwithstanding any provision of Part IV
of this Constitution, the sanctions which may be imposed may include the
suspension of a member of the Legislative Assembly from sitting in it for such
period as may be prescribed in such a law.
Freedom of information
122. A law enacted by the Legislature shall provide for a right of access to
information held by public authorities, for the conditions for the exercise of that
right, and for restrictions and exceptions to that right in the interests of the
security of the Cayman Islands or the United Kingdom, public safety, public
order, public morality or the rights or interests of individuals.
PART IX
MISCELLANEOUS
Official language of the Cayman Islands
123. The official language of the Cayman Islands is English.
Interpretation
124. (1) In this Constitution, unless it is otherwise provided or required by the
context -
“Assembly” means the Legislative Assembly;
“Bill of Rights” means the Bill of Rights, Freedoms and Responsibilities set out
in Part I of this Constitution;
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“Caymanian” has the meaning ascribed to it in the laws of the Cayman Islands for
the time being in force;
“Court of Appeal” means the court established by section 99;
“functions” includes jurisdiction, powers and duties;
“Government” means the Government of the Cayman Islands;
“Government Notice” means a Cayman Islands Government Notice;
“Governor” means the person for the time being holding the office of Governor
of the Cayman Islands, and includes any person for the time being lawfully
performing the functions of that office and, to the extent to which a person
appointed under section 36 is authorised to act (but except where the word
“Governor” appears in that section), that person;
“Grand Court” means the court established by section 94;
“high judicial office” means the office of judge of a court having unlimited
jurisdiction in civil and criminal matters in some part of the Commonwealth or in
Ireland or a court having jurisdiction in appeals from such a court;
“Judicial and Legal Services Commission” means the Commission established by
section 105;
“law” includes any instrument having the force of law made in exercise of a
power conferred by law;
“Leader of the Opposition” means a Leader of the Opposition appointed under
section 68;
“Legislature” means the Legislature established by section 59(1);
“Minister” means a member of the Cabinet who is appointed as the Premier or
other Minister;
“oath” includes affirmation;
“political party” means a group of persons who have united to contest election for
membership of the Legislative Assembly;
“Premier” means a Premier appointed under section 49;
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“public office” means, subject to subsection (2), an office of emolument in the
public service;
“public officer” means the holder of any public office, and includes a person
appointed to act in any public office;
“the public service” means the service of the Crown in a civil capacity in respect
of the government of the Cayman Islands;
“session” means the meetings of the Legislative Assembly commencing when the
Assembly first meets after being constituted under this Constitution, or after its
prorogation or dissolution at any time, and terminating when the Assembly is
prorogued or is dissolved without having been prorogued;
“sitting” means a period during which the Legislative Assembly is sitting
continuously without adjournment and includes any period during which the
Assembly is in committee.
(2) For the purposes of this Constitution, references to public offices shall
not be construed as including -
(a) references to the office of Speaker, Deputy Speaker or elected
member of the Legislative Assembly, Premier or other Minister,
or Leader of the Opposition;
(b) except in section 110, references to the office of judge of the
Grand Court or the Court of Appeal;
(c) references to a member of the Judicial and Legal Services
Commission, the Human Rights Commission, the Commission
for Standards in Public Life, the Constitutional Commission, an
Electoral Boundary Commission, or the Advisory Committee on
the Prerogative of Mercy, or to the Complaints Commissioner;
(d) references to any office the holder of which is declared by any
law in force in the Cayman Islands not to be disqualified for
election as a member of the Assembly,
and a person shall not be considered as holding a public office by reason only that
he or she is in receipt of a pension or other like allowance in respect of service
under the Crown.
(3) Any person who has vacated his or her seat in any body, or has vacated
any office established by this Constitution, may, if qualified, again be appointed
or elected as a member of that body or to that office, as the case may be, from
time to time.
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(4) A reference in this Constitution to the holder of an office by the term
designating his or her office shall be construed as a reference to any person for
the time being acting in that office or otherwise lawfully performing the functions
of that office.
(5) Without prejudice to subsection (4) -
(a) where the holder of any office constituted by or under this
Constitution is on leave of absence pending the relinquishment of
that office, the person or authority having power to make
appointments to that office may appoint another person to it; and
(b) where two or more persons concurrently hold the same office by
virtue of paragraph (a), the person last appointed shall in respect
of any function conferred on the holder of that office be deemed
to be the sole holder of it.
(6) Any power conferred by this Constitution to make any proclamation,
rules, regulations or order or to give any directions shall be construed as
including a power exercisable in like manner to amend or revoke any such
proclamation, rules, regulations, order or directions.
(7) Where a person is required by this Constitution to make an oath he or
she shall, if he or she so desires, be permitted to comply with that requirement by
making an affirmation in accordance with the Schedule to this Constitution.
(8) For the purposes of this Constitution, the resignation of a member of
any body or the holder of any office established by it that is required to be
addressed to any person shall, unless otherwise expressly provided, be deemed to
have effect from the time at which it is received by that person.
(9) For the purposes of this Constitution, a person shall not be regarded as
absent from the Cayman Islands or as unable to perform any of his or her
functions under it by reason only that he or she is in passage between any one of
the Cayman Islands and another or from one part of any Island to another part.
Power reserved to Her Majesty
125. There is reserved to Her Majesty full power to make laws for the peace,
order and good government of the Cayman Islands.
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SCHEDULE TO THE CONSTITUTION
FORMS OF OATHS AND AFFIRMATIONS
126. Oath of Allegiance
I………………..do swear that I will be faithful and bear true allegiance to Her
Majesty Queen Elizabeth the Second, Her Heirs and Successors, according to
law. So help me God.
127. Oath for due execution of office
I………………..do swear that I will well and truly serve Her Majesty Queen
Elizabeth the Second, Her Heirs and Successors, and the people of the Cayman
Islands in the office of (here insert the description of the office). So help me God.
128. Oath for due execution of judicial office
I………………..do swear that I will well and truly serve Her Majesty Queen
Elizabeth the Second, Her Heirs and Successors, and the people of the Cayman
Islands in the office of (here insert the description of the office) and that I will do
right to all manner of people according to the law without fear or favour,
affection or ill-will. So help me God.
129. Affirmations
In the forms above respectively set forth, for the word “swear” there shall be
substituted the words “solemnly and sincerely affirm and declare”, and the words
“So help me God” shall be omitted.
EXPLANATORY NOTE
(This note is not part of the Order)
This Order establishes a new Constitution for the Cayman Islands, to replace the
Constitution of 1972. The new Constitution includes, for the first time, a Bill of
Rights setting out the fundamental rights and freedoms of the individual and
provisions for their enforcement. It provides for a Governor as Her Majesty’s
representative in the Islands, and for a Premier and other Ministers who form a
Cabinet together with the Deputy Governor and the Attorney General. It provides
for an elected Legislative Assembly, which together with Her Majesty forms the
Legislature. It provides for a Grand Court and a Court of Appeal as superior
courts, and a Judicial and Legal Services Commission to advise on judicial and
senior legal appointments. Provision is also made for a Human Rights
Commission, a Commission for Standards in Public Life, and a Constitutional
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Commission. A new National Security Council is established, as is the new office
of Director of Public Prosecutions. Provision is also made for the public service,
public finance, a Complaints Commissioner, a Register of Interests, and freedom
of information.
(1) 1962 c.19.
(2) S.I. 1972/1101, amended by S.I. 1984/126, 1987/2199, 1992/226,
1993/3143, 2003/1515, 2004/2029, 2004/2673, 2008/3127.
(3) 2002 c.8.
(4) 1978 c.30.
(5) 1833 c.41.
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